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EN EN
EUROPEAN COMMISSION
Brussels, 28.4.2017
C(2017) 2616 final
COMMUNICATION FROM THE COMMISSION
of 28.4.2017
Commission Notice on Access to Justice in Environmental Matters
2
TABLE OF CONTENTS
A. INTRODUCTION: ACCESS TO JUSTICE IN EU
ENVIRONMENTAL LAW ................................................................................ 4
B. THE LEGAL CONTEXT: NATIONAL COURTS AND EU
ENVIRONMENTAL LAW ................................................................................ 8
C. GUARANTEEING ENVIRONMENTAL ACCESS TO JUSTICE ....... 11
1. PUBLIC INTERESTS. OBLIGATIONS AND RIGHTS RELEVANT
TO THE EXERCISE OF JUDICIAL PROTECTION ................................. 11
1.1. Introduction ................................................................................................ 11
1.2 Public interests, obligations and rights ..................................................... 11
1.3. Ensuring an active role of the public, safeguarding rights and
upholding obligations ........................................................................................ 12
2. LEGAL STANDING .................................................................................... 18
2.1 Introduction ................................................................................................. 18
2.2 Requests for environmental information and entitlement to receive
information ........................................................................................................ 19
2.3 Specific activities that are subject to public participation requirements
............................................................................................................................. 20
2.4 Requests for action under environmental liability rules ......................... 26
2.5. Other subject-matter, such as national implementing legislation,
general regulatory acts, plans and programmes and derogations ............... 27
3. SCOPE OF JUDICIAL REVIEW ............................................................... 32
3.1. Introduction ................................................................................................ 32
3.2 Possible grounds of judicial review ........................................................... 32
3.3 Intensity of scrutiny/standard of review ................................................... 35
4. EFFECTIVE REMEDIES ........................................................................... 44
4.1 Introduction ................................................................................................. 44
3
4.2 Remedies in case of minor procedural defects ......................................... 45
4.3 Suspension, revocation or annulment of unlawful decisions or acts,
including disapplication of legislation and regulatory acts .......................... 45
4.4 Instructions requiring omitted measures to be adopted ......................... 47
4.5 Making good unlawful harm caused by an unlawful decision, act or
omission .............................................................................................................. 47
4.6 Interim measures......................................................................................... 49
5. COSTS ............................................................................................................ 51
5.1. Introduction ................................................................................................ 51
5.2. Criteria for assessing whether costs are prohibitive .............................. 52
5.3 Legal aid ....................................................................................................... 55
6. TIME LIMITS, TIMELINESS AND THE EFFICIENCY OF
PROCEDURES ................................................................................................. 57
7. PRACTICAL INFORMATION .................................................................. 58
D. CONCLUSION ............................................................................................. 60
ANNEX I: List of relevant case-law of the CJEU for access to justice in
environmental matters: .................................................................................... 61
ANNEX II: Current EU instruments cited..................................................... 63
4
A. INTRODUCTION: ACCESS TO JUSTICE IN EU
ENVIRONMENTAL LAW
1. The environment is our life-support system and a common heritage. Preserving,
protecting and improving is a shared European value, with EU environmental law
establishing a common framework of obligations for public authorities and rights for the
public.
2. The recently adopted Commission Communication 'Better results through better
application'1 stresses that, where obligations or rights under EU law are affected at
national level, there has to be access to national courts in line with the principle of
effective judicial protection set out in the EU Treaties and with the requirements
enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.
3. EU law recognizes that, in the domain of the environment, access to justice needs to
reflect the public interests that are involved.
4. The Aarhus Convention on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters2 ('the Aarhus Convention')
establishes that, in certain cases, natural and legal persons (such as non-governmental
organisations, 'NGOs') can bring a case to a court or to other impartial bodies in order to
allow for the review of acts or omissions of public or private bodies3. This has been
ratified by all Member States and by the EU4.
5. Apart from meeting an international commitment, ensuring that individuals and NGOs
have access to justice under this Convention is also an important means of improving
Member State's implementation of EU environmental laws without the need for
Commission intervention.
6. The Aarhus Regulation, 1367/2006, applies the Aarhus Convention to EU institutions and
bodies. For Member States, certain pieces of EU secondary legislation contain express
access to justice provisions mirroring those of the Convention5.
7. Outside the scope of harmonised EU secondary legislation, the current legislative
provisions in the Member States on access to justice in environmental matters differ
considerably6. At the same time, the Court of Justice of the European Union ('CJEU') has
issued significant rulings clarifying EU requirements on access to justice in
environmental matters, both within and outside the context of the harmonised secondary
1 C(2016)8600.
2 http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.
3 See, in particular, Article 9(2) and (3) of the Aarhus Convention.
4 Decision 2005/370/EC.
5 For example, the Environmental Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions
Directive, 2010/75/EU. 6 http://ec.europa.eu/environment/aarhus/studies.htm
5
legislation. The result is a sizeable and valuable body of CJEU case-law touching on all
aspects of the subject.
8. Against this background, a number of problems have been identified:
Individuals and NGOs are adversely affected by obstacles to access to national courts.
This helps to explain why a stream of preliminary references have been submitted to
the CJEU by different national courts, seeking clarification on whether access should
be given and under what conditions. The public is affected more indirectly when
ineffective access to justice contributes to implementation failures, e.g. unhealthy air
pollution levels resulting from administrative inaction.
Public administrations and national courts face burdens due to litigation centred on
issues related to access to justice. Providing greater clarity based on the existing
CJEU case-law should contribute to efficient public administration as well as the
administration of justice.
Businesses are negatively affected by delays in administrative decision-making
related to prolonged litigation due to unclear access to justice rules, such as on
standing rights and the scope of judicial review. National courts are increasingly
filling the gaps in national procedural law, particularly in the area of legal standing,
but, because their rulings relate to specific cases, they cannot provide all the clarity
and predictability necessary to guide investment decisions.
Timing and a clear legal framework are particularly relevant for small and medium-
sized enterprises ('SMEs') which cannot afford unnecessarily long authorisation
procedures and uncertainty about litigation risks and scope. Businesses can also suffer
where ineffective access to justice contributes to a failure to provide them with the
clean environment on which many of them depend or a failure of government to make
investments that are good for the green economy.
9. Having considered several options, the Commission decided that an Interpretative
Communication on access to justice in environmental matters (i.e. this Notice) would be
the most appropriate and effective means to address the problems. By bringing together
all the substantial existing CJEU case-law, and by drawing careful inferences from it, it
would provide significant clarity and a reference source for the following: national
administrations who are responsible for ensuring the correct application of EU
environmental law; national courts, which guarantee respect for EU law and are
competent to refer questions on the validity and interpretation of EU law to the CJEU; the
public, notably individuals and environmental NGOs, who exercise a public-interest
advocacy role; and economic operators, who share an interest in the predictable
application of the law. The light adoption procedure would help the Commission deliver
an effective initiative in the short term.
6
10. The option of continuing with 'business-as-usual' and only relying on CJEU case-law to
evolve was not considered as an appropriate one in view of the needs identified. A
legislative option in the form of a dedicated access to justice legal instrument was also not
further pursued in view of the experience with a Commission proposal of 20037 which
remained with the Council for over a decade without any agreement being found or in
prospect.8 Finally a sector-by-sector legislative approach, focusing on adding access-to-
justice provisions in areas in which specific challenges have been identified (such as
nature, water, waste and air) would not help in the short term and, in any case, the EU
legislature does not appear to be currently receptive9.
11. The Notice is based on provisions of EU law, including the Charter of Fundamental
Rights, and the case-law of the CJEU. It addresses how the public can challenge
decisions, acts or omissions of public authorities before a court of law or similar body,
covering legal standing, the intensity of scrutiny and the effective remedies to be provided
by the national judge, and several other safeguards. In doing so, it provides a clear idea of
what is necessary at national level in order to comply with these requirements.
12. In case Member States have to take measures to ensure compliance, they will be helped to
make the necessary changes, including via exchanges under the recently adopted
Environmental Implementation Review ('EIR')10
. The Commission published on 6
February 2017 the first ever comprehensive overview of how EU environmental policies
and laws are applied on the ground. This shows that environmental policies and laws
work but that there are big gaps in how they are put into practice across Europe. The most
pressing implementation gaps across EU Member States are found in the policy fields of
waste management, nature and biodiversity, air quality, and water quality and
management. The EIR Communication and the 28 country-specific reports set the scene
for a positive and constructive approach to improving implementation of EU law and the
present Notice is an important supplement to that.
13. In case of non-compliance with existing legal requirements under the EU acquis, the
Commission will also continue to use infringement procedures to ensure their fulfilment.
14. While focused on the environment, the Notice fits with broader Commission work on
access to justice, notably the EU Justice Scoreboard, and on the application of the Charter
of Fundamental Rights, and the EU Framework to strengthen the rule of law11. Effective
justice systems play a crucial role in upholding the rule of law and the fundamental values
of the European Union, as well as in ensuring effective application of EU law and mutual
trust. That is why improving the effectiveness of national justice systems is one of the
7 COM(2003) 624 final.
8 This proposal was therefore withdrawn by the Commission in 2014, see Withdrawal of obsolete Commission
proposals, OJ C 153, 21.5.2014, p. 3–7. 9 In negotiating the National Emissions Ceiling Directive, 2016/2284, the Council and Parliament considered
including access to justice provisions, but decided to limit mention of access to justice to a recital. 10
http://ec.europa.eu/environment/eir/country-reports/index_en.htm 11
COM(2014) 158 final
7
priorities of the European Semester, the EU's annual cycle of economic policy
coordination. The EU Justice Scoreboard assists Member States to achieve more effective
justice by providing comparative data on the quality, efficiency and independence of the
national justice systems12
. The Commission adopted a new framework to address
systemic threats to the rule of law in any of the EU’s Member States in its 2014
Communication13
. Respect for the rule of law is a prerequisite for the protection of all
fundamental values listed in the Treaties, including fundamental rights.
15. The scope of the Notice is limited to access to justice in relation to decisions, acts and
omissions by public authorities of the Member States. It does not address environmental
litigation between private parties14
. Nor does it concern the judicial review of acts of the
EU institutions via the General Court, which is addressed by the Aarhus Regulation,
1367/2006. Further, while the Notice is closely aligned with CJEU case-law, only the
CJEU itself can provide definitive interpretations.
16. Within these limits, the Notice will contribute to a better implementation of EU
environmental law in the Member States by clarifying how the public can rely on national
courts, which are often better placed to identify appropriate solutions since they are closer
to the facts and their context. In this way, the Notice will also contribute to the rule of
law, a fundamental value of the EU legal order.
12
In 2008, the Commission also launched a programme for the training of judges in the field of EU
environmental law. By means of training modules available online, national judges and training institutes can
obtain up-to-date and accurate knowledge on different topics of EU environmental law, such as access to justice,
environmental liability, water and waste. 13
COM(2014) 158 final 14
This is addressed in the Commission's Collective Redress Recommendation, 2013/396/EU.
8
B. THE LEGAL CONTEXT: NATIONAL COURTS AND EU
ENVIRONMENTAL LAW
17. National courts are ‘the ordinary courts’ for implementing EU law within the legal
systems of the Member States.15
They have powers to review decisions that are
incompatible with EU law and order financial compensation for the damage caused16
.
18. Access to justice in environmental matters is intrinsic to EU environmental law, and
draws on fundamental principles of EU law that are reflected in the provisions of the EU
Treaties, the Aarhus Convention and secondary legislation as interpreted in case-law of
the CJEU.
19. EU environmental law covers EU legislation which contributes to the pursuit of the
following objectives of EU policy on the environment17
, set out in Article 191 of the
Treaty on the Functioning of the European Union (TFEU):
preserving, protecting and improving the quality of the environment; protecting
human health;
prudent and rational utilisation of natural resources; and
promoting measures at international level to deal with regional or worldwide
environmental problems, and in particular combating climate change.
20. This legislation creates a wide range of obligations that competent public authorities in
Member States must fulfil, and is relevant to significant categories of decisions, acts and
omissions under their responsibility.
21. Stressing that EU law is a distinct and autonomous legal order, the CJEU has endorsed
and developed general principles - such as those of equivalence and effectiveness18
- in
order to define and support it, while recognising the procedural autonomy of Member
States19
, i.e. the power to fix their own detailed procedural requirements.
22. The rule of law includes an effective judicial protection of rights conferred by EU law.
This is reflected in EU primary law. Article 19(1) of the Treaty on European Union
(TEU) requires that 'Member States shall provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law'. In addition, Member States are
bound, when they are implementing EU law, by Article 47 of the Charter of Fundamental
Rights which enshrines in its first paragraph the right to an effective remedy, providing
that 'Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with the
15
Opinion 1/09, Creation of a Unified Patent Litigation System, EU:C:2011:123, ground 80. 16
C(2016)8600, p.4. 17
See Article 37 of the Charter of Fundamental Rights 18
See for example Case C-115/09 Bund für Umwelt und Naturschutz, paragraph 43 and case C-570/13 Gruber,
paragraph 37. 19
Case C-416/10 Križan, paragraph 106.
9
conditions laid down in this Article'. It should be recalled that Article 19(1) of the TEU
and Article 47 of the Charter only apply in the field of EU law. Article 47 of the Charter
corresponds to Article 6 and Article 13 of the European Convention on Human Rights
(ECHR) which enshrine, respectively, the right to a fair trial and the right to an effective
remedy.
23. Effective judicial protection is closely linked to the uniform interpretation of EU law by
the CJEU and the possibility for – and sometimes requirement on – national courts to
submit questions concerning the validity and interpretation of acts of EU institutions and
bodies to the CJEU by way of preliminary reference under Article 267 of the TFEU. The
role of Article 267 may be put in doubt if access to national courts is either impossible or
rendered excessively difficult.
24. Since its ratification by the EU and its entry into force, the Aarhus Convention is an
integral part of the EU legal order and binding on Member States under the terms of
Article 216 (2) of the TFEU20
. Within the framework of that legal order, the CJEU
therefore has in principle jurisdiction to give preliminary rulings concerning the
interpretation of such an agreement21
.
25. The objective of the Convention is 'to contribute to the protection of the right of every
person of present and future generations to live in an environment adequate to his or her
health and well-being'22
. To that end, it obliges contracting parties to guarantee three
broad categories of rights for citizens and their associations, namely rights of access to
information, rights to participate in decision-making, and rights of access to justice in
environmental matters.
26. Access to justice is addressed in Article 9 of the Convention. In its structure, this
provision reflects the three above-mentioned 'pillars' of the Convention and highlights
that access to justice rights are auxiliary to, and supportive of, other rights23
. The Aarhus
Convention Implementation Guide24
published by the Aarhus Convention Secretariat
provides further guidance for the contracting parties on the interpretation and the
implementation of the requirements of the Convention, although it needs to be borne in
mind that 'the Guide has no binding force and does not have the normative effect of the
provisions of the Convention'25
.
20
Case C-243/15 Lesoochranarske zoskupenie VLK II (LZ II), paragraph 45. 21
See C-240/09 Lesoochranarske zoskupenie VLK I (LZ I), paragraph 30, on the interpretation of Article 9(3)
of the Aarhus Convention. 22
Article 1, Aarhus Convention. 23
Article 9(1) refers to the separate right of access to information; Article 9(2) relates to rights to participate in
decision-making procedures on specific activities; Article 9(3) covers acts and omissions that infringe
environmental law in general. Article 9(4) addresses remedies and the timeliness and costs of the procedures in
the previous paragraphs. 24
The Aarhus Convention: An Implementation Guide, second edition 2014.
http://www.unece.org/env/pp/implementation_guide.html 25
See Case C-182/10 Solvay and others, paragraph 27.
10
27. The CJEU has held that it is for the national court, in order to ensure effective judicial
protection in the fields covered by EU environmental law, to interpret its national law in a
way which, to the fullest extent possible, is consistent with objectives laid down in the
Aarhus Convention26
.
28. The EU has adopted legislation on the environment containing explicit access to justice
requirements27
.
29. The sizeable body of CJEU case-law that has emerged on access to justice in
environmental matters is primarily the result of preliminary references from national
courts under Article 267 of the TFEU. A significant number concern access to justice
provisions found in the secondary legislation. There are also cases that highlight the
importance of general principles of EU law – notably the principle of effectiveness28
.
30. The foregoing represents the broad framework for EU access to justice in environmental
matters within Member States. While the framework has been established at EU level, it
is at the level of Member States – and in particular, national courts – that it acquires
practical reality and meaning.
26
See Case C-240/09 LZ I, paragraph 50. This ruling was in the context of Article 9(3) of the Aarhus
Convention. 27
Article 6(2) of the Access to Environmental Information Directive, 2003/4/EC; Article 13 of the
Environmental Liability Directive, 2004/35/EC; Article 25 of the Industrial Emissions Directive, 2010/75/EU;
Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU; and Article 23 of the Seveso III
Directive, 2012/18/EU. See also recital 27 of the National Emissions Ceiling Directive, 2016/2284, which
makes a specific reference to the case law of the CJEU on access to justice. 28
Some clarity on access to justice in environmental matters also results from direct actions taken by the
European Commission under Article 258 TFEU to address problems of transposition with the Environmental
Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions Directive, 2010/75/EU. See for
example case C-427/07 Commission v Ireland and case C-530/11 Commission v United Kingdom.
11
C. GUARANTEEING ENVIRONMENTAL ACCESS TO JUSTICE
1. PUBLIC INTERESTS. OBLIGATIONS AND RIGHTS RELEVANT TO THE
EXERCISE OF JUDICIAL PROTECTION
1.1. Introduction
Access to justice in environmental matters serves the purposes of enabling individuals and
their associations to exercise rights conferred on them under EU environmental law. It also
helps to ensure that the aims and obligations of EU environmental legislation are attained.
31. Under EU law, access to justice in environmental matters represents a set of supportive
rights which serves two purposes. It enables individuals and their associations to exercise
the rights conferred on them by EU law, and it helps ensure that the aims and obligations
of EU environmental legislation are attained29
.
1.2 Public interests, obligations and rights
EU environmental legislation aims to secure general public interests such as clean air, safe
and adequate water resources and a healthy biodiversity. Active involvement of the public is
a concomitant environmental public interest that supports them.
32. In legislating to preserve, protect and improve the quality of the environment, the EU
legislature has largely legislated in favour of general public interests such as clean air,
safe and adequate water resources, a healthy biodiversity and the avoidance of waste.
These are general public interests because societal well-being depends on them.
33. The measures put in place by the EU legislature to secure these general public interests
include the following:
binding environmental quality objectives and obligations that Member States
must respect30
; duties on Member States to monitor the state of the environment
31;
29
Case C-71/14 East Sussex, paragraph 52, and Case C-72/95 Kraaijeveld, paragraph 56. 30
These include limit values for important air pollutants like sulphur dioxide, particulate matter and nitrogen
dioxide under Article 13 of the Air Quality Directive, 2008/50/EC; good water quality objectives for surface and
ground waters under Article 4 of the Water Framework Directive, 2000/60/EC; and favourable conservation
status for a range of species and types of natural habitat under Article 2 of the Habitat Directive, 92/43/EEC. 31
Examples include duties to monitor bathing waters under Article 3 of the Bathing Water Directive, 2006/7/EC
and assess air quality under Articles 5 to 11 of the Air Quality Directive, 2008/50/EC.
12
requirements on public authorities to prepare plans and programmes to reduce
pollution and waste32
;
requirements that certain activities should take place only after a permit or
consent has first been obtained from a public authority33
; and
requirements that, before consents are given for certain types of plans and
projects, environmental assessments should be prepared34
.
These measures need to be supplemented at Member State level by national implementing
legislation and general regulatory acts and by individual decisions and acts of public
authorities.
34. Through a series of steps since the 1980s, the EU has also put in place measures to
recognise an auxiliary public interest of actively involving the public in these measures35
.
The CJEU has noted the link between access to justice in environmental matters and ‘the
desire of the European Union legislature to preserve, protect and improve the quality of
the environment and to ensure that, to that end, the public plays an active role’.36
1.3. Ensuring an active role of the public, safeguarding rights and upholding obligations
The public and other interests set out in EU environmental law and the related obligations
placed on public authorities give rise to procedural and substantive rights for individuals and
their associations. These rights need to be protected by national courts.
35. The CJEU has recognised that the public interests mentioned above and obligations
placed on public authorities give rise to rights for individuals and their associations,
which are to be protected by national courts. These rights are both procedural and
substantive in nature. Several procedural and substantive rights may simultaneously be
32
Examples include requirements to prepare river basin management plans under Article 13 of the Water
Framework Directive, 2000/60/EC, air quality plans under Articles 23 and 24 of the Air Quality Directive,
2008/50/EC, and waste management plans under Article 28 of the Waste Framework Directive, 2008/98/EC. 33
Examples include obligations to hold a waste permit under Article 23 of the Waste Framework Directive,
2008/98/EC, hold a permit under Article 4 of the Industrial Emissions Directive, 2010/75/EU, and obtain a
consent under Article 6(3) of the Habitats Directive, 92/43/EEC. 34
Examples include Article 3 of the Strategic Environmental Assessment Directive, 2001/42/EC and Article 2
of the Environmental Impact Assessment Directive, 2011/92/EU. 35
The original Environmental Impact Assessment Directive, 85/337/EEC, required the public to be given an
opportunity to express an opinion on environmental information submitted by project developers with the aim of
supplementing it. The original Access to Environmental Information Directive, 90/313/EEC, noted in its recitals
that ‘access to information on the environment held by public authorities will improve environmental
protection'. ’These provisions were further strengthened through adoption of the Aarhus Convention and several
pieces of EU secondary legislation. 36
Case C-260/11 Edwards and Pallikaropoulos, paragraph 32.
13
engaged, as where a decision, act or omission of a public authority involves issues of
participation of the public as well as fulfilment of substantive environmental protection
obligations.
36. In LZ II, the CJEU ruled in the context of the Habitats Directive, 92/43/EEC, that ‘(i)t
would be incompatible with the binding effect attributed to a directive by Article 288
TFEU to exclude, in principle, the possibility that the obligations which it imposes may be
relied on by those concerned’.37
37. This underlines that the rationale for access to justice in environmental matters includes
the need to ensure that obligations created by EU environmental law are fulfilled. The
conditions for bringing a case before a national court, may, however, vary depending on
who is deemed to be concerned. In this context, it is necessary to distinguish between
environmental NGOs and individuals.
Environmental NGOs play an important role in ensuring compliance with the obligations of
EU environmental law and enjoy a broad right to protect the environment which national
courts need to uphold.
38. The involvement of the public has been envisaged as covering not only the role of
individuals but also that of their associations38
. Indeed, CJEU case-law recognises that
environmental associations – ‘environmental non-governmental organisations or
environmental NGOs’ - play a vital role in ensuring compliance with obligations under
EU environmental law.
39. In LZ I (also known as ‘Slovak Brown Bears’), the CJEU ruled that ‘it is for the referring
court to interpret, to the fullest extent possible, the procedural rules relating to the
conditions to be met in order to bring administrative or judicial proceedings in
accordance with the objectives of Article 9(3) of that convention and the objective of
effective judicial protection of the rights conferred by European Union law, in order to
enable an environmental protection organisation, such as the Lesoochranarske
zoskupenie, to challenge before a court a decision taken following administrative
proceedings liable to be contrary to European Union environmental law.’39
40. The judgment in LZ I is also noteworthy because it concerned a decision by a public
authority to authorise the hunting of brown bears in derogation from the provisions on
species protection laid down in the Habitats Directive, 92/43/EEC. The species protection
provisions of this directive do not aim at protecting individuals but the environment, and
37
Case C-243/15 LZ II, paragraph 44. 38
For example, the Aarhus Convention defines ‘the public’ to include associations, organizations or groups of
natural or legal persons. 39
Case C-240/09 LZ I, paragraph 51.
14
this in the general interest of the public. Therefore, the CJEU acknowledged that the
claimant environmental NGO had a right that deserved judicial protection in the specific
case, such as that of rendering the provisions of the Habitats Directive, 92/43/EEC,
enforceable.
41. This is especially important in the field of nature protection, because in this field it may
be difficult to argue that decisions, acts of omissions of public authorities can affect
specific rights of individuals, such as those relating to human health.
42. The position of the CJEU in LZ I is also consonant with the seventh, thirteenth and
eighteenth recitals of the Aarhus Convention, which acknowledge the important role that
environmental NGOs play in environmental protection. Furthermore, the CJEU's decision
in LZ I is not an isolated one. It is consistent with the earlier decision in Janecek that legal
as well as natural persons can invoke EU environmental law that aims to safeguard
human health40
.
43. In addition to the right of environmental NGOs that the CJEU recognised in LZ I and in
Janecek41
, several EU legislative acts recognise the role of environmental NGOs by
providing for de lege legal standing for them in relation to specific activities requiring
public participation as well as situations of environmental damage. These are examined in
more detail in Section C.2.
EU environmental law confers procedural and substantive rights on individuals. These relate
in particular to requirements for public authorities to correctly follow a procedure intended
to involve the public as well as provisions which concern human health and property.
a) Procedural rights
44. The ‘public’ under Article 2(4) of the Aarhus Convention also includes individuals and
these too have a recognised role in preserving, protecting and improving the quality of the
environment. However, the right to rely on obligations imposed on national authorities by
EU environmental law before a national court may be restricted by national law to
circumstances in which a sufficient interest or an impairment of rights can be
demonstrated42
. Access to a national court can therefore be restricted to the enforcement
of those provisions which not only impose obligations on public authorities but also
confer rights on individuals.
45. Procedural rights usually relate to public participation. They typically have to do with the
practical arrangements whereby a public authority informs the public of a proposed
40
C-237/07 Janecek, paragraph 39. 41
C-237/07 Janecek, paragraph 39. 42
See for example Article 11(1) of the Environmental Impact Assessment Directive, 2011/92/EU, and Article
9(2) of the Aarhus Convention.
15
decision, receives any submissions, takes these into account and publicly announces its
decision. Public participation is envisaged in the Aarhus Convention for:
decisions on specific activities43
; plans, programmes and policies relating to the environment
44 and
executive regulations and/or generally applicable legally binding normative
instruments45
.
46. Express public participation provisions are chiefly – though not exclusively – found in the
following EU environmental directives: the Environmental Impact Assessment Directive,
2011/92/EU, the Industrial Emissions Directive, 2010/75/EU; the Public Participation
Directive, 2003/35/EC; and the Strategic Environmental Assessment Directive,
2001/42/EC. On the other hand, in LZ II the CJEU construed broadly the mandatory
public participation requirements of Article 6(1)(b) of the Aarhus Convention and read
them in conjunction with Article 6(3) of the Habitats Directive, 92/43/EEC.
47. Moreover, as the CJEU observed in Kraaijeveld, procedural rights serve the purpose of
ensuring the effective implementation of EU environmental law: ‘In particular, where the
Community Authorities have, by directive, imposed on Member States the obligation to
pursue a particular course of conduct, the useful effect of such an act would be weakened
if individuals were prevented from relying on it before their national courts’.46
The
particular course of conduct alluded to in that case was the undertaking of an
environmental impact assessment, which included public consultation. The same rationale
holds true for other provisions of EU environmental law requiring public consultation,
such as those found in the Strategic Environmental Assessment Directive, 2001/42/EC47
.
b) Substantive rights
48. In addition to procedural rights, the CJEU has recognised that certain EU environmental
secondary legislation confers substantive rights on individuals and their associations.
49. In Janecek the CJEU stated that ‘whenever the failure to observe the measures required
by the directives which relate to air quality and drinking water, and which are designed
to protect public health, could endanger human health, the persons concerned must be in
a position to rely on the mandatory rules included in those directives.’48
50. There are two reasons why the substantive right recognised in Janecek – i.e. to have one's
health protected via EU environmental legislation – has broad relevance.
43
Article 6. 44
Article 7. 45
Article 8. 46
Case C-72/95 Kraaijeveld, paragraph 56. 47
Case C-41/11 Inter-Environnement Wallonie, paragraph 42. 48
Case C-237/07 Janecek, paragraph 38. Janecek was preceded by a number of judgments in which the CJEU
stressed the need for correct transposition of air and drinking water directives in order to ensure that the persons
concerned can ascertain the full extent of their rights, see cases C- 361/88 Commission v Germany, paragraph
24, and C-59/89, Commission v Germany, paragraph 13.
16
51. First, the CJEU itself in the subsequent case, Stichting Natuur en Milieu49
, applied the
same rationale to air quality legislation which operates at a wider level than the local level
relevant in Janecek. This indicates that the protection of human health is not to be seen as
confined to immediate, local threats50
.
52. Second, EU environmental legislation often includes the protection of human health
amongst its objectives, in line with Article 35 of the Charter of Fundamental Rights.51
Human health is specifically mentioned in some of the most important pieces of EU
environmental legislation, such as the Waste Framework Directive, 2008/98/EC52
, the
Water Framework Directive 2000/60/EC53
and the National Emissions Ceiling Directive
2016/2284/EU54
. The rationale of Janecek might, therefore, be relevant well beyond air
quality and drinking water legislation.
53. A possible breach of property rights, and related pecuniary damage, stemming from a
decision, act or omission of a public authority which infringes environmental law, may
also entitle an individual to invoke EU environmental law before a court.
54. In Leth, the CJEU held that ‘the prevention of pecuniary damage, in so far as that
damage is the direct economic consequence of the environmental effects of a public or
private project, is covered by the objective of protection pursued by Directive 85/337
[now Directive 2011/92 EU] ’.55
The rationale of Leth applies also to other pieces of EU
environmental legislation such as the Strategic Environmental Assessment Directive,
2001/42/EC.
55. EU environmental law does not establish a general right to a healthy and intact
environment for every individual. However, a natural or legal person may have obtained
the right to use the environment for a specific economic or non-profit activity. An
example could be an allocated and acquired fishing right in specified waters56
. This may
give rise to the need to challenge any decision, act or omission which impacts that
specifically allocated right to use the environment.
56. This is especially relevant for EU water and nature legislation. In this regard, the over-
arching instrument for water, the Water Framework Directive, 2000/60/EC, defines
‘pollution’ in terms of the introduction of substances or heat which ‘impair[s] or
interfere[s] with amenities and other legitimate uses of the environment’. Both the Wild
Birds Directive, 2009/147/EC, and the Habitats Directive, 92/43/EC, refer to a broad
49
Joined Cases C-165 to C-167/09 Stichting Natuur en Milieu, paragraph 94. 50
Janecek concerned local air quality measures for the city of Munich, while Stichting Natuur en Milieu
concerned the national emissions ceiling for the Netherlands. 51
According to this, ‘a high level of human health protection shall be ensured in the definition and
implementation of all the Union's policies and activities’. 52
See Article 13. 53
See definition of ‘pollution’ in Article 2(33). 54
See Article 1. 55
Case C-420/11 Leth, paragraph 36. 56
See pending case C-529/15 Folk.
17
range of possible uses of nature, including recreational pursuits (such as hunting),
research and education. For these different uses, it is reasonable to suppose that, besides
interests, issues concerning rights could also come to the fore.
57. Against this background, the remaining sections of this Notice examine access to justice
in environmental matters from several different perspectives:
the precise basis and the conditions on which individual and environmental NGOs
can expect to obtain legal standing;
the scope of review, i.e. the grounds of review and the intensity of scrutiny that should
apply to contested decisions, acts and omissions;
effective remedies to address decisions, acts and omissions found to be legally
flawed;
litigation costs and the factors that need to be taken into account in order to avoid that
these are prohibitive; and
the timeliness of procedures and the need to provide the public with practical
information.
18
2. LEGAL STANDING
2.1 Introduction
Legal standing is the entitlement to bring a legal challenge to a court of law or other
independent and impartial body in order to protect a right or interest of the claimant
regarding the legality of a decision, act or omission of a public authority. Legal standing can
vary depending on the subject-matter of the contested decision, act or omission. It can also
vary depending on whether the claimant is an individual or a recognised environmental
NGO.
58. Legal standing – sometimes referred to as locus standi - is the entitlement to bring a legal
challenge to a court of law or other independent and impartial body in order to protect a
right or interest of the claimant. The entitlement to challenge is in respect of decisions,
acts and omissions of public authorities, which may infringe such a right or interest.
Decisions, acts and omissions represent the ways in which public authorities fulfil – or
take a position on - duties placed on them under EU environmental law, for example to
ensure that waste facilities and industrial installations operate under a permit57
. Apart
from being a means of ensuring the protection of rights and interests, legal standing
represents a means of ensuring accountability in respect of such decisions, acts or
omissions.
59. A few EU environmental directives contain access to justice provisions expressly
requiring Member States to provide legal standing58
. However, express provisions on
access to justice, including standing, are absent in most EU secondary environmental
legislation. Nevertheless, despite the absence of express legislative provisions, the
requirements concerning legal standing have to be interpreted in the light of the principles
established in the case-law of the CJEU.
60. The basis for legal standing varies according to the subject-matter of the decision, act or
omission sought to be challenged. The following sections distinguish between decisions,
acts and omissions concerning:
Requests for environmental information and entitlement to receive information
(Section C.2.2)
57
Such duties are found in the Waste Framework Directive, 2008/98/EC, and the Industrial Emissions Directive,
2010/75/EU. 58
Article 6(2) of the Access to Environmental Information Directive, 2003/4/EC; Article 13 of the
Environmental Liability Directive, 2004/35/EC; Article 25 of the Industrial Emissions Directive, 2010/75/EU;
Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU; and Article 23 of the Seveso III
Directive, 2012/18/EU. See also recital 27 of the National Emissions Ceiling Directive, 2016/2284, which
makes a specific reference to the case law of the CJEU on access to justice.
19
Specific activities that are subject to public participation requirements (Section C.2.3)
Requests for action under environmental liability rules (Section C.2.4);
Other subject-matter, such as national implementing legislation, general regulatory
acts, plans and programmes and derogations (Section C.2.5).
61. For the first three categories, express legal standing rights can be largely found in
secondary EU environmental legislation59
. For the last category, legal standing depends
on general principles governing legal standing as interpreted by the CJEU.
62. The extent of legal standing also varies according to whether the person seeking to
challenge is an individual, environmental NGO or other entity. This aspect is considered
in the different sections below.
2.2 Requests for environmental information and entitlement to receive information
Any natural or legal person submitting an information request enjoys legal standing to
challenge a decision, act or omission of the public authority responsible for dealing with that
request. Rights to receive information through active dissemination may also entitle
individuals and associations to bring legal challenges.
63. EU environmental law confers rights on natural and legal persons to request
environmental information60
. The Access to Environmental Information Directive,
2003/4/EC, provides explicitly in its Article 6 for a judicial review procedure to examine
acts or omissions by public authorities in relation to requests for environmental
information falling within the directive's scope. The right to a review is based on the
requirements of Article 9(1) of the Aarhus Convention and is intended to protect the right
to make an information request61
. Any natural or legal person submitting an information
request enjoys legal standing.62
64. EU environmental law confers rights on natural and legal persons not only to request but
to receive environmental information63
. It is clear from the CJEU's decision in East
Sussex that the rights of applicants for environmental information include the right to
have the competent public authority correctly fulfil conditions related to the supply of
59
See also Case C-243/15, LZ II. The CJEU establishes legal standing requirements for cases beyond EU
secondary law on the basis of Article 47 of the Charter of Fundamental rights in conjunction with Article 9(2) of
the Aarhus Convention for decisions, acts and omission for which the public participation provision of Article 6
of the Aarhus Convention applies. 60
These are found in the Access to Environmental Information Directive, 2003/4/EC. 61
The right to make an information request is set out in Article 4 of the Aarhus Convention. 62
See Aarhus Implementation Guide, page 191. 63
These are found in the Access to Environmental Information Directive, 2003/4/EC, as well as in several
pieces of sectoral environmental information.
20
information64
. That case concerned rights to receive information on request but the public
is also entitled to receive information through active dissemination by the competent
public authorities65
. The fulfilment by public authorities of their obligations to actively
disseminate environmental information may, inter alia, be important for safeguarding the
right to have one's health protected66
.
2.3 Specific activities that are subject to public participation requirements
Public participation requirements that apply to specific activities confer rights on those who
are concerned and entitle them to ask for a judicial review of the decision, act or omission at
stake.
65. EU environmental legislation contains a significant number of obligations that require
public authorities to make decisions on specific activities that may have effects on the
environment. For example, a proposed motorway will require a decision of a public
authority consenting to it before building can start. Similarly, a proposed industrial
activity may require a decision to be made by a public authority on an industrial
emissions permit before it can commence operating. Further, much EU secondary
environmental legislation requires public consultation during the decision-making
process.67
Mandatory consultation confers participation rights on those members of the
public who are entitled to participate.
66. Legal standing to challenge decisions, acts and omissions concerning specific activities
that are subject to public participation requirements is based on both express provisions
on legal standing found in Article 9(2) of the Aarhus Convention and related EU
secondary legislation68
as well as on case-law of the CJEU. In particular, the CJEU
64
Case C-71/14 East Sussex, paragraph 56. 65
See for example Article 7 of the Access to Environmental Information Directive, 2003/4/EC, and Article 11
of the INSPIRE Directive, 2007/2/EC. 66
Notable examples include Article 12(1)(e) of the Bathing Water Directive, 2006/7/EC, which requires the
public to be informed whenever bathing is prohibited or advised against; and Article 8(3) of the Drinking Water
Directive, 98/83/EEC, which requires consumers to be promptly informed of health-endangering drinking water
contamination. 67
Notable examples are Article 24 of the Industrial Emissions Directive, 2010/75/EU, Article 6(4) of the
Environmental Impact Assessment Directive, 2011/92/EU, and Article 15 of the Seveso III Directive
2012/18/EU. There is a vaguer public consultation requirement in Article 6(3) of the Habitats Directive,
92/43/EEC, which, however, has to be read in conjunction with Article 6 (1)(b) of the Aarhus Convention, see
Case C-243/15 LZ II, paragraph 45. 68
Article 25 of the Industrial Emissions Directive, 2010/75/EU; Article 11 of the Environmental Impact
Assessment Directive, 2011/92/EU; and Article 23 of the Seveso III Directive, 2012/18/EU.
21
confirmed in Kraaijeveld 69
that a decision, act or omission of a public authority impairing
participation rights gives rise to an entitlement to seek a judicial review.
67. Since the Kraaijeveld judgment was delivered, an express legal standing right based on
the right to participate has been incorporated into the Aarhus Convention. In particular,
Article 9(2) of the Aarhus Convention requires a review procedure before a court of law
and/or another independent and impartial body established by law70
in order to challenge
the substantive and procedural legality of any decision, act or omission, subject to the
public participation provisions of Article 6 of the Aarhus Convention.
68. Related pieces of EU secondary environmental legislation71
contain provisions based on
the wording of Article 9(2). However, this secondary legislation does not cover all
decision-making processes covered by Article 6 – and by extension Article 9(2) - of the
Convention. Since Article 9(2) refers to situations in which the public participation
provisions of Article 6 of the Aarhus Convention apply, Member States are obliged to
have in place a judicial review regime whenever Article 6 of the Convention foresees an
obligation concerning public participation.
69. In LZ II72
the CJEU ruled that the public participation requirements of Article 6(1)(b) of
the Aarhus Convention also apply in the context of Article 6(3) of the Habitats Directive
92/43/EEC, in situations where a public authority is obliged by national law to determine
whether or not to carry out an appropriate assessment on a project that may have a
significant effect on the integrity of a protected Natura 2000 site. Further, it ruled that,
because the requirements of Article 6(1)(b) of the Convention apply to such situations,
those of Article 9 (2) apply to these situations as well.
70. With this judgment, the CJEU clarified that the requirements of Article 9(2) of the Aarhus
Convention in conjunction with Article 47 of the Charter of Fundamental Rights might
also apply to those areas of environmental law which do not contain specific access to
justice requirements. Indeed, while LZ II concerned the Habitats Directive, 92/43/EEC,
the rationale behind the CJEU's interpretation lends itself to be applied by analogy to
decision-making processes in other sectors of EU environmental law such as water and
waste.
71. It is the ‘public concerned’ that benefits from the public participation provisions of
Article 6(2) of the Aarhus Convention and by extension the access to justice provisions of
Article 9(2) and the corresponding EU secondary legislation. This is defined as ‘the
public affected or likely to be affected by, or having an interest in, the environmental
69
Case C-72/95 Kraaijeveld, paragraph 56.
70 In this Notice, references to national courts should also be considered as applicable, mutatis mutandis, to other
independent and impartial bodies established by law. 71
See Article 25 of the Industrial Emissions Directive, 2010/75/EU; Article 11 of the Environmental Impact
Assessment Directive, 2011/92/EU; and Article 23 of the Seveso III Directive, 2012/18/EU. 72
Case C-243/15 LZ II.
22
decision-making’73
. ‘The public’ is defined as ‘one or more natural or legal persons, and,
in accordance with national legislation or practice, their associations, organizations or
groups’74
.
72. However, neither Article 9(2) of the Aarhus Convention nor the provisions of EU
secondary legislation grant unconditional access to justice to the members of the public.
The Convention and the legislation allow contracting parties and the Member States to
impose certain conditions and so to avoid a general legal standing in environmental
matters for everyone (actio popularis)75
. Furthermore, both the Aarhus Convention and
the EU secondary legislation derived from it provide for a differentiation in legal standing
rights. This differentiation is between, on the one hand, individuals, associations,
organisations and groups and, on the other, recognised environmental NGOs.
2.3.1 Individuals
For individuals, the precondition of needing to show the ‘impairment of a right’ or a
sufficient interest in order to obtain legal standing to bring a challenge concerning a
specific activity has to be interpreted and applied in the light of the obligation to grant a
wide access to justice in environmental matters. Rights which may be impaired include
procedural rights of the individual stemming from EU environmental law (e.g. public
participation rights) as well as substantive rights conferred on the individual (e.g. protection
of human health, property rights).
73. According to Article 9(2) of the Aarhus Convention as well as Article 11 of the
Environmental Impact Assessment Directive, 2011/92/EU, and Article 25 of the
Industrial Emissions Directive, 2010/75/EU, the contracting parties and the Member
States may restrict access to the courts to those individuals who demonstrate either a
sufficient interest or, alternatively, the impairment of a right. The ‘impairment of a right’
doctrine is explained further in section C.2.5.3.
2.3.2 Environmental NGOs with legal standing de lege
2.3.2.1 General Principle
Recognised environmental NGOs enjoy legal standing de lege to challenge decisions, acts or
omissions by public authorities on specific activities which are subject to public
participation requirements under EU law.
73
See Article 2(5) of the Aarhus Convention and Article 1(2)(d) and (e) of the Environmental Impact
Assessment Directive, 2011/92. 74
See Article 2 (4) of the Aarhus Convention. 75
See also Aarhus Convention Implementation Guide, p. 199
23
74. Articles 2(5) and 9(2) of the Aarhus Convention and the related EU legislation giving
effect to it recognise the important role of actors such as environmental NGOs by giving
them a form of legal standing de lege on the assumption that they meet the relevant
requirements laid down in national law. For these NGOs, pre-conditions to legal standing
based on a sufficient interest or impairment of a right are deemed to be fulfilled76
. This
legal standing de lege has implications not only for the admissibility of a claim but also
for the scope of review exercised by the national judge (see Section C.3.2.2.2).
75. The CJEU has clarified the extent of the requirements of national law that NGOs can be
expected to fulfil to get this legal standing. It has stated that, although it is for the
Member States to make rules defining such requirements, they may not be framed in a
way that makes it impossible for NGOs to exercise a right to go to court in order to
protect the general interest. The national rules ‘must […] ensure wide access to justice’77
.
76. The CJEU has held that national legislation is in breach of Article 11 of the
Environmental Impact Assessment Directive, 2011/92/EU, where it does not permit
NGOs in the sense of Article 1(2) of that directive to rely before the courts, in an action
contesting a decision authorising projects ‘likely to have significant effects on the
environment’ for the purposes of Article 1(1) of that directive, on the infringement of a
rule flowing from EU environment law and intended to protect the environment, on the
ground that that rule protects only the interests of the general public and not the interests
of individuals.78
77. This rationale applies in all cases involving legal standing de lege, i.e. those within the
scope of Article 9(2) of the Aarhus Convention.
2.3.2.2 Specific criteria for legal standing de lege
The criteria that environmental NGOs have to fulfil to qualify for legal standing de lege
must not be excessively difficult to satisfy and should take into account the interests of small
and local NGOs.
78. National rules may define the requirements that NGOs must fulfil in order to qualify for
legal standing de lege. CJEU case-law sheds light on how stringent such rules may be.
(a) Active in the environmental field
79. An engagement in the area of the environment helps ensure that an NGO has useful
expertise and knowledge. In Djurgården, the CJEU confirms that ‘a national law may
76
See Article 11(3) of the Environmental Impact Assessment Directive, 2011/92/EU and Article 9(2) of Aarhus
Convention. 77
Case C-263/08 Djurgården, paragraph 45. 78
Case C-115/09 Bund für Umwelt und Naturschutz, paragraph 59.
24
require that such an association, which intends to challenge a project covered by
Directive 85/337/EEC [now Directive 2011/92] through legal proceedings, has as its
object the protection of nature and the environment’.79
It cannot be inferred from this
formulation that the CJEU approved a requirement that the NGO must have an exclusive
object of environmental protection. However, it appears permissible for a Member State
to require that the protection of the environment constitutes a dominant or substantial
objective of an NGO.
(b) Membership requirement
80. The number of members that an NGO has may be an important indicator that it is active.
In Djurgården the CJEU looked at a requirement of national law that an NGO had to have
a certain number of members. The CJEU ruled that the number of members required
cannot be fixed at such a level that it runs counter to the objective of facilitating access to
justice.80
It also stressed the importance of facilitating locally based NGOs, as these may
be the most likely to challenge smaller scale projects which do not have a national or
regional importance but still have a significant effect on the environment81
. It may be
noted that not all NGOs that benefit from de lege standing in Member States are
membership-based. Some are charitable foundations. Indeed, claims by such foundations
have given rise to important CJEU case-law.
(c) Other criteria
81. In practice, some Member States require an NGO to satisfy other criteria to obtain legal
standing de lege. These may relate to the independence or non-profit-making character of
the NGO or its having a distinct legal personality under national law. Or they may involve
the NGO proving that it has a solid financial basis to pursue an objective of promoting
environmental protection. Or they may consist in a minimum duration of existence before
legal standing de lege is granted. In this regard, the CJEU reasoning in Djurgården
concerning membership requirements, recalled in the previous paragraph, should be taken
into account.82
2.3.3 Non-discrimination against foreign NGOs
The conditions to be fulfilled by environmental NGOs in order to obtain legal standing de
lege must not be less favourable for foreign NGOs than for domestic ones.
79
Case C-263/08 Djurgården, paragraph 46 80
Case C-263/08 Djurgården, paragraph 47. 81
In the context of this particular case, the CJEU considered that a membership requirement of 2000 members
was not in line with the objectives of the Environmental Impact Assessment Directive, 2011/92/EU. 82
Case C-263/08 Djurgården paragraph 47.
25
82. Environmental NGOs of neighbouring Member States may wish to participate in a
decision-making process for a specific activity or otherwise be active in relation to it.
This is particularly true where a specific activity may have trans-boundary environmental
impacts. Article 3(9) of the Aarhus Convention stipulates that ‘the public shall have
access to justice in environmental matters without discrimination as to citizenship,
nationality or domicile and, in the case of a legal person, without discrimination as to
where it has its registered seat or an effective centre of its activities’. Thus, when a
foreign NGO seeks legal standing, it must not be treated less favourably than domestic
NGOs in relation to the conditions to be fulfilled for legal standing de lege.
83. Article 3(9) only prohibits discrimination, so a Member State may require foreign NGOs
to fulfil the same conditions as apply to domestic ones. However, these conditions, in
particular the procedure to obtain the status of an NGO with legal standing de lege, must
not prevent or render it excessively difficult for a foreign NGO to obtain that status83
.
2.3.4 Other associations, organisations and groups
While not enjoying legal standing de lege, other associations, organizations and groups
may, subject to national law, enjoy legal standing on the same basis as individuals.
84. As already noted, ‘the public’ under the Aarhus Convention can include ‘one or more
natural or legal persons, and, in accordance with national legislation or practice, their
associations, organizations or groups’. Thus, even if not entitled to legal standing de
lege, associations, organisations and groups may be entitled to legal standing on the same
basis as individuals. This can facilitate a merger of claims which might otherwise have to
be pursued separately by individual claimants, bringing advantages to both the public
concerned (through the sharing of the burden of litigation) and the public authority (by
reducing the risk of having to deal with a multiplicity of separate legal challenges).
2.3.5 Prior participation
Member States may not restrict legal standing to challenge a decision of a public authority
to those members of the public concerned who participated in the preceding administrative
procedure to adopt that decision.
83 See also point 18 of the Collective Redress Recommendation, 2013/396/EU, where a different mechanism of
awarding legal standing to NGOs from another Member State is recommended. This mechanism is based on the
recognition of standing awarded in the Member State in which the NGO is domiciled. This would be more
favourable than the principle of non-discrimination in particular for NGOs from Member States where the
conditions for granting legal standing are less strict than in others. Therefore, in cases falling within the scope of
both the Aarhus Convention and the Recommendation, the additional application of the mutual recognition
mechanism of the Recommendation would facilitate the activities of NGOs further.
26
85. A lack of participation in the administrative procedure for adopting a decision may be an
issue in the admissibility of a later legal challenge to that decision84
. The CJEU case-law
emphasises the role of national courts in protecting substantive rights conferred on
individuals and associations under EU law and, at the same time, that the administrative
and judicial procedures serve different purposes. For example, the decision of a public
authority may give rise to a potential breach of a claimant's right to have his or her health
protected independently of any procedural rights of the claimant.
86. In this regard, in Djurgarden, the CJEU held that, in the context of a decision relevant to
the Environmental Impact Assessment Directive, 2011/92/EU, ‘an environmental
decision-making procedure […] is separate and has a different purpose from a legal
review, since the latter may, where appropriate, be directed at a decision adopted at the
end of that procedure’85
. Therefore ‘the members of the public concerned […] must be
able to have access to a review procedure to challenge the decision by which a body
attached to a court of law of a Member State has given a ruling on a request for
development consent, regardless of the role they might have played in the examination of
that request by taking part in the procedure before that body and by expressing their
views’
2.4 Requests for action under environmental liability rules
87. The Environmental Liability Directive, 2004/35/EC, aims, amongst other things, to
encourage natural and legal persons to play a role in assisting competent authorities to
address situations of environmental damage covered by environmental liability rules86
. It
allows natural or legal persons affected by such damage or having a sufficient interest in
the damage or alleging the impairment of a right caused by the damage to make
submissions and requests to the competent national authority to take necessary measures.
It envisages that certain NGOs will be deemed to have a sufficient interest or rights
capable of being impaired, so entitling them to request action. The competent authority is
required to take a decision on the request for action87
.
88. The entitlement to make submissions and request action is formulated in a manner that
draws very closely on the wording used in Article 9(2) of the Aarhus Convention and in
the related provisions of the Environmental Impact Assessment Directive, 2011/92/EU.
Indeed, those entitled to make submissions and request action are also entitled to legally
challenge the procedural and substantive legality of a competent authority's decision, act
or failure to act on the basis of the submissions and the request88
.
84
See also the Aarhus Convention Implementation Guide, p.195. 85
C-263/08 Djurgarden, paragraph 38 86
These rules include detailed provisions on ‘remedial measures’ for environmental damage coming within the
directive's scope, see Article 7 of the Environmental Liability Directive, 2004/35/EC. 87
Article 12 of the Environmental Liability Directive, 2004/35/EC. 88
Article 13 of the Environmental Liability Directive, 2004/35/EC.
27
89. The similarity in wording, including with regard to the privileged entitlement of
environmental NGOs, means that the CJEU case-law on legal standing described in
Section C.2.3 can also be taken into account in interpreting the Environmental Liability
Directive, 2004/35/EC.
2.5. Other subject-matter, such as national implementing legislation, general regulatory
acts, plans and programmes and derogations
2.5.1 General basis for legal standing
The general basis for legal standing to challenge decisions, acts and omissions of Member
States in the fields covered by EU environmental law is laid down in national law, but has to
be interpreted consistently with the requirements set out in Article 9(3) of the Aarhus
Convention and Articles 19(1) TFEU and 47 of the Charter of Fundamental Rights.
90. Article 19(1) TEU, which codifies the established principle of effective judicial
protection89
, requires that ‘Member States shall provide remedies sufficient to ensure
effective legal protection in the fields covered by Union law.’ At the same time, Article 47
(1) of the Charter of Fundamental Rights, which Member States are bound to respect
when implementing EU law, provides that ‘everyone whose rights and freedoms
guaranteed by the law of the Union are violated has the right to an effective remedy
before a tribunal in compliance with the conditions laid down in this Article’.
91. In the specific domain of the environment, Article 9(3) of the Aarhus Convention
provides that contracting parties shall ensure that, where they meet the criteria, if any, laid
down in its national law, members of the public have access to administrative or judicial
procedures to challenge acts and omissions by private persons and public authorities
which contravene provisions of its national law relating to the environment. As
previously noted, the definition of ‘the public’ includes environmental NGOs.
92. Article 9(3) is broader than Article 9(2) of the Aarhus Convention as the intended
beneficiary of legal standing is ‘the public’, which is by definition in the Aarhus
Convention broader than the ‘public concerned’. Article 9(3) also refers to acts and
omissions by private persons, while Article 9(2) is limited to decisions, acts and
omissions of public authorities90
. On the other hand, Article 9(3) leaves the contracting
parties the choice between an administrative review procedure and a judicial review
procedure. Further, it makes no reference to access criteria such as the impairment of a
right or the sufficiency of an interest, nor does it provide for legal standing de lege for
environmental NGOs.
89
See for example Case C‑432/05 Unibet, paragraph 37. 90
For the scope of this Notice see Section A.
28
93. As a consequence, the CJEU has clarified in LZ I that Article 9(3) does not contain any
clear and precise obligation capable of directly regulating the legal position of
individuals, since it is subject to the adoption of subsequent measures by contracting
parties.91
However, the CJEU has also held that the provisions of Article 9(3), although
drafted in broad terms, are intended to ensure effective environmental protection92
and
that ‘it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such
a way as to make it in practice impossible or excessively difficult to exercise rights
conferred by EU law.’93
94. By virtue of Article 216(2) of the TFEU, the Aarhus Convention is part of the EU legal
order.94
The requirements of the EU legal order, which are binding for the Member States
in the implementation of Article 9(3) of the Convention, include the uniform application
and interpretation of EU law. A key mechanism for ensuring this is the possibility for –
and sometimes the duty on – national courts to seek a ruling from the CJEU under Article
267 of the TFEU on the validity or interpretation of specific EU law requirements. This
necessitates access to the national courts.
95. In the light of all these considerations, Member States are obliged to provide for legal
standing to ensure access to an effective remedy for the protection of procedural and
substantive rights conferred by EU environmental law even if the EU environmental
legislation at stake does not contain specific provisions on the matter.
2.5.2 Legal standing to protect procedural rights under EU environmental law
Legal standing must be provided to individuals and environmental NGOs to ensure respect
for EU environmental procedural provisions, such as those laying down decision-making
procedures involving public participation, for example in procedures concerning plans and
programmes.
96. Procedural rights are particularly important in the case of plans and programmes. Many
pieces of EU environmental legislation require that plans and programmes be adopted to
ensure that envisaged environmental objectives are achieved. These documents can serve
as a means of managing interventions over time (e.g. river basin management plans)95
or
of setting out actions to respond to specific problems (e.g. air quality plans to lower
excessive levels of air pollution)96
. In addition to requiring certain kinds of plan and
programme to be adopted, EU environmental legislation also sets requirements for the
91
Case C-240/09 LZ I, paragraph 45. 92
Case C-240/09 LZ I, paragraph 46. 93
Case C-240/09 LZ I, paragraph 49. 94
Case C-243/15 LZ II, paragraph 45. 95
See Article 13 of the Water Framework Directive, 2000/60/EC. 96
See Article 23 of the Air Quality Directive, 2008/50/EC.
29
environmental assessment of plans and programmes (e.g. land-use plans) which can have
a significant impact on the environment97
.
97. Much of the legislation concerned envisages a stage of mandatory public consultation
during the decision-making process. In this regard, Article 7 of the Aarhus Convention
requires public consultation for plans and programmes coming within its broad scope. On
this basis, plans and programmes related to the environment which are mandatory under
EU law but for which no explicit public participation provisions have been established,
may still need to include public consultation.
98. Legal standing to challenge decisions, acts and omissions of public authorities concerning
plans and programmes covered by Article 7 of the Convention can be defined in the light
of the CJEU case-law on public participation. Applying the rationale of the ruling in
Kraaijeveld98
(which concerned a project rather than a plan or programme), the
beneficiaries of participation rights are entitled to ask for a review by a court of whether
the required course of conduct in the decision-making process for a plan or programme
was respected.
99. The CJEU case-law indicates that legal standing is not only relevant for decisions, acts or
omissions on individual plans and programmes, but is also relevant for national
legislation and general regulatory acts establishing the procedural requirements for such
plans and programmes. Indeed, in Terre Wallonne and Inter-Environnement Wallonie99
,
the CJEU ruled that an action programme required under the Nitrates Directive,
91/676/EEC, also requires in principle a strategic environmental assessment (which
includes public consultation) under the Strategic Environmental Assessment Directive,
2001/42/EC. As a result, a national court annulled parts of a national order establishing a
nitrates action programme on the basis that it had failed to provide for a strategic
environmental assessment. In the subsequent case, Inter-Environnement Wallonie, the
CJEU confirmed the appropriateness of annulment in these circumstances100
.
100. It is clear that both individuals and environmental NGOs can benefit from legal standing
to protect procedural rights. This is because both are entitled to exercise such rights.
2.5.3 Legal standing to protect substantive rights
Member States need to ensure legal standing to challenge very broad categories of decisions,
acts and omissions in order to ensure that an extensive set of substantive rights can be
exercised.
97
See Article 4 of the Strategic Environmental Assessment Directive, 2001/42/EC 98
Case C-72/95Kraaijeveld, paragraph 56. 99
Joined Cases C-105/09 and C-110/09 Terre Wallonne and Inter-Environnement Wallonie. 100
Case C-41/11 Inter-Environnement Wallonie, paragraph 46.
30
101. It is clear from the CJEU case-law that legal standing needs to be granted to individuals
and environmental NGOs to protect human health via EU environmental legislation,
property rights covered by the objectives of EU environmental legislation, and, in the
case of environmental NGOs, to protect the environment via the requirements of EU
environmental legislation.
102. The application of the ‘impairment of rights doctrine’ (i.e. the doctrine followed by
certain Member States according to which an individual needs to demonstrate to a court
that a right that they enjoy has been impaired) has presented challenges because
environmental protection usually serves the general public interest and does not usually
aim at expressly conferring rights on the individual. The alternative approach of requiring
a sufficient interest appears to raise fewer challenges, but similar considerations to those
described for the impairment of rights doctrine should apply mutatis mutandis.
103. The CJEU has confirmed that it is for the Member States to define what constitutes the
impairment of a right101
. However, it has also clarified that the wording of Article 11(3)
of the Environmental Impact Assessment Directive, 2011/92/EU, and the second
paragraph of Article 9(2) of the Aarhus Convention mean that this discretion is qualified
by the need to respect the objective of ensuring wide access to justice for the public
concerned102
. Further, the discretion of Member States on what constitutes the
impairment of a right cannot make it excessively difficult to protect the rights conferred
by EU law. Therefore, legal standing of members of the public concerned by the
decisions, acts or omissions which fall within the scope of the Environmental Impact
Assessment Directive, 2011/92/EU – and Article 9(2) of the Aarhus Convention - cannot
be interpreted restrictively103
.
104. The CJEU has upheld these rights in the context of the following decisions, acts and
omissions of public authorities: the omission of a public authority to prepare a legally
required air quality plan104
, adopted national emission reduction programmes105
and the
grant of a derogation under nature legislation.106
The case-law therefore underlines the
need for Member States and national courts to ensure legal standing to challenge very
broad categories of decision, act and omission on the basis of an extensive set of
substantive rights.
2.5.4 Criteria that individuals and NGOs must satisfy to claim legal standing
Member States may adopt criteria that individuals and NGOs must fulfil in order to obtain
legal standing, but these criteria must not make it impossible or excessively difficult to
101
Case C-115/09 Bund für Umwelt und Naturschutz , paragraph 44. 102
Case C-570/13 Gruber, paragraph 39 and Case C-115/09 Bund für Umwelt und Naturschutz, paragraph 44. 103
Case C-570/13 Gruber, paragraph 40. 104
Case C-237/07 Janecek. 105
Joined Cases C-165 to C-167/09 Stichting Natuur en Milieu. 106
Case C-240/09 LZ I.
31
exercise substantive and procedural rights conferred by EU law.
105. The wording of Article 9(3) of the Aarhus Convention (‘where they meet the criteria, if
any, laid down in its national law’) grants the contracting parties a certain degree of
discretion to establish the criteria for standing.
106. Member States are not obliged to give standing to any and every member of the public
(actio popularis) or any and every NGO. However, according to the Aarhus Convention
Implementation Guide, any such criteria should be consistent with the objectives of the
Convention regarding ensuring access to justice107
. The parties may not take the clause
‘where they meet the criteria, if any, laid down in its national law’ as an excuse for
introducing or maintaining criteria so strict that they effectively bar all, or almost all
environmental organisations from challenging acts or omissions that contravene national
law relating to the environment108
. Further, in accordance with the principle of
effectiveness, Member States cannot adopt criteria which render it impossible or
excessively difficult to exercise rights conferred by EU law.
107. Appropriate criteria established by the Member States in the context of Article 9(2) of the
Aarhus Convention will also be appropriate in an Article 9(3) context. However, unlike
Article 9(2), Article 9(3) does not expressly provide for legal standing de lege for
environmental NGOs. This raises the question of whether Member States are entitled to
apply the impairment of rights doctrine without any allowance for the fact that an NGO
will not be able to demonstrate an impairment in the same way as an individual. In this
regard, considering the role of environmental NGOs in protecting general environmental
interests such as the quality of air and biodiversity, Member States which apply the
impairment of rights doctrine need to do so in such a way as to ensure that environmental
NGOs are given legal standing to contest decisions, acts and omissions which concern
this role.
107
See Aarhus Convention Implementation Guide, p. 198. 108
See Aarhus Convention Implementation Guide, p. 198.
32
3. SCOPE OF JUDICIAL REVIEW
3.1. Introduction
The scope of judicial review determines how national judges will assess the legality of
contested decisions, acts and omissions. It has two aspects. The first concerns the possible
grounds of judicial review, i.e. the areas of law and legal arguments that may be raised.
The second concerns the intensity of scrutiny (or the standard of review).
108. The scope of judicial review is a key element of an effective system of judicial review as
it determines how national judges will assess the legality of contested decisions, acts and
omissions. It has two main aspects. The first relates to the areas of law and the legal
arguments which can be raised in a legal challenge, in particular as regards whether a
claimant is entitled to invoke all relevant provisions of EU environmental law in order to
build a case. This is addressed in Section C.3.2. The second aspect relates to the intensity
of scrutiny to be exercised by judges when assessing legality and is addressed in Section
C.3.3.
109. A number of EU directives that expressly provide for access to justice contain provisions
relevant to the scope of judicial review109
. However, most environmental secondary
legislation lacks such provisions and, to understand the appropriate scope, it is necessary,
as with legal standing, to refer to the case-law of the CJEU.
3.2 Possible grounds of judicial review
110. This aspect is particularly relevant in those jurisdictions which grant legal standing only
on the basis that the rights of the claimant have been impaired. In these, the possible
grounds of judicial review are often traditionally restricted to those legal provisions which
confer the individual rights that provide the basis for the legal standing invoked. This
aspect is also relevant to restrictions aimed at limiting claimants to arguments they have
raised in prior administrative proceedings (preclusion) or at preventing claimants from
abusing judicial processes by making irrelevant legal submissions.
3.2.1 Specific activities that are subject to public participation requirements
109
Article 6 (2) of the Access to Environmental Information Directive, 2003/4/EC; Article 13 of the
Environmental Liability Directive, 2004/35/EC; Article 25 of the Industrial Emissions Directive, 2010/75/EU;
Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU; and Article 23 of the Seveso III
Directive, 2012/18/EU. See also recital 27 of the National Emissions Ceiling Directive, 2016/2284, which
makes a specific reference to the case law of the CJEU on access to justice.
33
111. This category is covered by Article 9(2) of the Aarhus Convention. As noted above,
Article 9(2) is aimed at providing for access to justice in relation to decisions, acts or
omissions on specific activities covered by the public participation requirements of
Article 6 of the Convention.
112. As also noted, Article 9(2) allows Member States to restrict legal standing on the basis of
claimants who are individuals having to show the impairment of a right or a sufficient
interest. In terms of the possible grounds of judicial review, this gives rise to a potential
difference in how the claims of individuals and environmental NGOs may be treated. This
is especially relevant to decisions, acts and omissions that concern the Environmental
Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions Directive,
2010/75/EU, the main pieces of EU secondary legislation that give effect to Article 9(2).
However, in LZ II 110
the CJEU confirmed that the scope of Article 6 of the Aarhus
Convention – and hence of Article 9(2) – is wider than that of these EU directives.
3.2.1.1 Individuals
If it makes the admissibility of legal challenges brought by individuals subject to the
condition of impairment of an individual right, a Member State is also authorised to provide
that the annulment of an administrative decision by a national court requires the
infringement of an individual right of the claimant.
113. In Commission v Germany, the CJEU ruled that where, in accordance with the access to
justice provisions of the Environmental Impact Assessment Directive, 2011/92/EU, and
the Industrial Emissions Directive, 2010/75/EU, a Member State limits the legal standing
for individuals to situations where rights are impaired, it ‘is also authorised to provide
that the annulment of an administrative decision by the court having jurisdiction requires
the infringement of an individual public-law right of the applicant’111
. This interpretation
can apply in respect of other contested decisions, acts and omissions covered by Article
9(2) of the Aarhus Convention.
114. This means that, under an impairment of rights regime, in applications lodged by
individuals, the national court can confine its examination to the provisions which entitled
the individual to bring the legal challenge.
3.2.2.2 Recognised environmental NGOs
For legal challenges falling within the scope of Article 9(2) of the Aarhus Convention,
recognised environmental NGOs are not restricted in the legal grounds they can plead and
are entitled to invoke any provision of EU environmental law.
110
Case C-243/15, LZ II. 111
Case C-137/14, Commission v Germany, paragraph 32.
34
115. The restriction of pleas described in Section C.3.2.1.1 does not apply to environmental
NGOs which fulfil the criteria laid down in national law in order to obtain legal standing
de lege.
116. In Trianel, the CJEU clarified that these NGOs are entitled to rely on any provision of EU
environmental law which has direct effect and on national law implementing EU law. It
held that if ‘the national legislature is entitled to confine to individual public-law rights
the rights whose infringement may be relied on by an individual in legal proceedings […]
such a limitation cannot be applied as such to environmental protection organisations
without disregarding the objectives of the last sentence of the third paragraph of
Article 10a of Directive 85/337’.112
117. This means that an environmental NGO which has brought proceedings on the basis of
legal standing de lege is entitled to invoke any provision of EU environmental law which
it considers to have been infringed.
3.2.2 Subject-matter falling under Article 9(3) of the Aarhus Convention
The grounds to be examined in judicial reviews falling under Article 9(3) of the Aarhus
Convention should, as a minimum, cover the provisions of law on which the claimant's
entitlement to legal standing is based.
118. Article 9(3) of the Aarhus Convention provides for legal standing to challenge acts and
omissions not covered by Article 9(1) or (2) of the Aarhus Convention.
3.2.2.1 Individuals
119. Under Article 9(3) of the Aarhus Convention, members of the public have access to
judicial proceedings where they meet the criteria laid down in national law. Thus, under
an impairment of rights approach, Member States could confine the scope of review to
legal pleas related to the rights that the claimant argues have been impaired.
3.2.2.2 Environmental NGOs
120. In the absence of legal standing de lege, environmental NGOs are entitled, as a minimum,
to a judicial review in respect of those provisions of law which give rise to actionable
rights and interests. As is evident from Sections C.1 and 2, and in particular the CJEU's
judgment in LZ II, environmental NGOs enjoy a broad right to protect the environment
and invoke environmental obligations before national courts.
3.2.3 Preclusion and other restrictions
112
Case C-115/09, Bund für Umwelt und Naturschutz , paragraph 45.
35
The scope of the review by a national court may not be reduced to the objections which have
already been raised within the time-limit set during the administrative procedure. However,
courts can treat as inadmissible arguments submitted abusively or in bad faith.
121. In Commission v Germany the CJEU ruled that it is not possible to restrict the ‘scope of
the review by the courts to the objections which have already been raised within the time-
limit set during the administrative procedure which led to the adoption of the decision’.
The CJEU justified its position by pointing to the obligation to ensure a review of both
the substantive and procedural legality of the contested decision in its entirety113
. This
judgment is relevant to decisions, acts and omissions covered by Article 11 of the
Environmental Impact Assessment Directive, 2011/92/EU and Article 25 of the Industrial
Emissions Directive, 2010/75/EU and to decisions, acts and omissions falling under
Article 9(2) of the Aarhus Convention. It is also applicable to acts and omissions falling
under Article 9(3) of the Convention, because legal challenges to these also cover
substantive and procedural legality (see Section C.3.3.3).
122. While preclusion is not permitted, the CJEU has indicated that national legislatures ‘may
lay down specific procedural rules, such as the inadmissibility of an argument submitted
abusively or in bad faith, which constitute appropriate mechanisms for ensuring the
efficiency of the legal proceedings’.114
In this regard, it is for the Member States to lay
down rules which are in conformity with the general requirement to provide for judicial
review of the substantive and procedural legality of decisions, acts and omissions.
3.3 Intensity of scrutiny/standard of review
Under Article 9(2) and Article 9(3) of the Aarhus Convention, Member States are to ensure
an effective judicial review of the substantive and procedural legality of decisions, acts and
omissions falling within the scope of these provisions, even if EU secondary legislation does
not make any explicit reference to a standard of review that covers both these aspects of
legality.
Scrutiny should, where necessary, extend to the legality of legislation and regulatory acts
where these reduce or impair procedural and substantive rights.
123. The intensity of scrutiny or standard of review determines how thoroughly the national
court is obliged to assess the legality of the decision, act or omission at stake. Approaches
113
Case C-137/14 Commission v Germany, paragraph 80. 114
Case C-137/14 Commission v Germany, paragraph 81.
36
vary considerably across Member States. They can extend from a focus on procedural
issues to a full review of contested decisions, acts or omissions, with a possibility for
judges to replace the findings of the administration with their own assessment.
124. The intensity of scrutiny or standard of review is not laid down in detail in the Aarhus
Convention or EU secondary legislation. However, the case-law of the CJEU sheds some
light on the minimum requirements to be fulfilled for the judicial review to be considered
effective.
3.3.1 Requests for environmental information
Member States must ensure an effective judicial review of the right to request environmental
information that covers the relevant principles and rules of EU law. The latter include
specific conditions that a public authority must fulfil under binding EU provisions on access
to environmental information.
125. Legal challenges to decisions concerning requests for environmental information fall
within the scope of Article 9(1) of the Aarhus Convention. The Access to Environmental
Information Directive, 2003/4/EC, contains access to justice provisions115
which reflect
the requirements of Article 9(1). They provide that Member States are to ensure that any
person requesting information under the directive has access to a review procedure before
a court of law or another independent and impartial body established by law, in which the
acts or omissions of the public authority concerned can be reviewed and whose decisions
may become final. They do not, however, determine the extent of the judicial review
required by the directive.
126. In East Sussex, the CJEU was asked to interpret the scope of review required under the
Access to Environmental Information Directive, 2003/4/EC. It held that ‘in the absence of
further detail in EU law, it is for the legal systems of the Member States to determine that
extent, subject to observance of the principles of equivalence and effectiveness’116
. In the
specific context of the access to justice provisions of the directive, the CJEU clarified that
an effective review needs to meet the objective of providing for a general scheme to
ensure that any natural or legal person in a Member State has a right of access to
environmental information held by or on behalf of public authorities, without that person
having to state an interest117
. With regard to the contested administrative decision to
charge an applicant certain costs for responding to an information request, the CJEU in
115
Article 6(2). 116
Case C-71/14 East Sussex, paragraph 53. 117
Case C‑279/12 Fish Legal and Shirley, paragraph 36.
37
East Sussex held that the national court has at least to examine whether or not relevant
conditions in the directive were met. 118
3.3.2 Other subject-matter such as specific activities requiring public participation;
environmental liability; plans and programmes; and derogations; national implementing
legislation and regulatory acts
The CJEU case-law provides guidance on how the scrutiny of decisions, acts and omissions
under EU environmental legislation should be carried out.
3.3.2.1 The need to scrutinize both procedural and substantive legality
127. The judicial review provided for under Article 9(2) of the Aarhus Convention – and under
the EU secondary legislation transposing it - is required to assess the substantive and
procedural legality of contested decisions, acts and omissions. However, neither the
Aarhus Convention nor the EU secondary legislation specifies the extent of the review of
substantive and procedural legality that needs to be undertaken.
128. In a similar vein, Article 9(3) of the Aarhus Convention does not provide an explicit
obligation to establish a review system in which the substantive and procedural legality of
an act or omission is assessed. In the context of EU secondary legislation, only the
Environmental Liability Directive, 2004/35/EC, currently expressly provides for this.
Nevertheless, the case-law of the CJEU, notably East Sussex and Janecek, indicates that
an EU principle of effective judicial review covering substantive and procedural legality
applies to acts and omissions falling under Article 9(3) of the Aarhus Convention.
Otherwise it could not be ensured that the objectives of, and the rights conferred by, EU
environmental law could be sufficiently protected by national courts. According to the
Aarhus Convention Implementation Guide, the standard of review to be applied in the
context of Article 9(3) is identical to the one to be applied in the context of Article 9(2) of
the Convention, which means that a national court should examine both substantive and
procedural legality119
.
129. The CJEU case-law makes clear that a review confined to procedural legality would not
be in compliance with the obligations stemming from Article 9(2) and the related EU
secondary legislation. In Commission v Germany, the CJEU held that ‘the very objective
pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only
to ensure that the litigant has the broadest possible access to review by the courts but
118
Set out in Article 5(2). 119
Aarhus Convention Implementation Guide p.199.
38
also to ensure that that review covers both the substantive and procedural legality of the
contested decision in its entirety’. 120
130. More generally, in East Sussex121
, the CJEU held that a system of judicial review
complies with the principle of effectiveness ‘if it enables the court or tribunal hearing an
application for annulment of such a decision to apply effectively the relevant principles
and rules of EU law when reviewing the lawfulness of the decision’.
131. The conclusion to be drawn from East Sussex is that, even if the standard of review is not
specified in EU law, the way in which a review is carried out has to be effective in
upholding rights and in ensuring that the objectives of the relevant EU legislation are
achieved.
3.3.2.2 Procedural legality
132. The Aarhus Convention Implementation Guide defines procedural illegality as a case
where the public authority has violated procedures set out in law122
.
133. Procedural shortcomings which may lead to the illegality of a decision, act or omission
can be related to (1) the competence of the authority to take the decision or act that is at
stake, (2) a mandatory procedure laid down for the decision-making process (e.g. public
consultation or the undertaking of an environmental impact assessment) or (3) the form in
which a decision, act or omission is found.
134. While (1) and (3) are usually determined by Member States in line with their procedural
autonomy, (2) is more likely to be determined by EU law where mandatory public
participation requirements are laid down in the Aarhus Convention and related EU
secondary legislation. For instance, the Environmental Impact Assessment Directive,
2011/92/EU, sets out formal public consultation requirements which a public authority
has to fulfil when carrying out an environmental impact assessment. Fulfilling these
requirements is essential in order to ensure effective public participation in the decision-
making process. As a consequence, applying the approach recalled above, the national
court needs to be empowered to examine compliance with these formal requirements and
decide on adequate remedies in case of shortcomings in the procedure. Mandatory formal
requirements are not at the discretion of the public authority.
135. The scrutiny of procedural legality may concern the scope for regularising the unlawful
measures of a private party or a public authority. The CJEU has allowed for the
possibility of regularisation but attached conditions as to its use123
. In Križan, in the
120
Case C-137/14, Commission v Germany, paragraph 80 (emphasis added). 121
Case C-71/14 East Sussex, paragraph 58. 122
See page 196. 123
In Case C-215/06 Commission v Ireland, the CJEU held at paragraph 57 that ‘while Community law cannot
preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or
measures which are unlawful in the light of Community law, such a possibility should be subject to the
39
context of an authorisation procedure for a landfill, the CJEU was asked to consider the
scope for rectifying an error made by a public authority (specifically, a failure to make
available certain information in a procedure to approve a landfill) at the stage of an
administrative appeal from the decision of that authority. The CJEU confirmed that
regularisation was possible, provided all required options and solutions remained possible
at the appeal stage124
. This was a matter for the national court to determine125
.
3.3.2.3. Substantive legality
136. Substantive illegality is defined by the Aarhus Convention Implementation Guide as a
case where the substance of the law has been violated126
.
(a) Facts of the case
137. A first aspect of reviewing the substantive legality concerns the facts of the case.
Gathered by the administration and eventually amended in a public consultation process,
they are the basis on which the competent authority decides whether or not to take any
decision or action and with which content and justification. Where the facts are
incomplete or wrong, or interpreted wrongly, the mistake has a direct consequence on the
quality of the administrative decision taken and may jeopardise the objectives of EU
environmental law.
138. In East Sussex, the CJEU confirmed that, in the absence of EU rules, it is for the legal
system of each Member State to lay down the detailed procedural rules governing actions
for safeguarding rights which individuals derive from EU law. In this regard, it must not
be made impossible in practice or excessively difficult to exercise rights conferred by EU
law (principle of effectiveness).127
139. National courts are not generally required to carry out any information-gathering or
factual investigations of their own. However, in order to ensure an effective review of the
decisions, acts or omissions at stake, a minimum standard has to be applied to the
examination of the facts in order to ensure that a claimant can exercise his or her right to
ask for a review in an effective manner also so far as the examination of facts is
concerned. If a national court could never review the facts on which the administration
based its decision, this could, from the outset, prevent a claimant from presenting
effectively a potentially justified claim.
(b) Assessment of the merits of a decision, act or omission
conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to
dispense with applying them, and that it should remain the exception.’ 124
Case C-416/10 Križan, paragraphs 87-91. 125
Case C-416/10 Križan, paragraph 91. 126
See page 196. 127
Case C-71/14 East Sussex, paragraph 52.
40
140. When they draw conclusions from the facts of a case and the applicable legislation,
administrative decision-makers usually enjoy a wide discretion. The CJEU recognizes
that a limited review of the merits of a decision, act or omission can be compatible with
EU law. As noted above, the CJEU in East Sussex held that, while a limited judicial
review does not per se make it excessively difficult to exercise the rights conferred by EU
law, it must, as a minimum, enable the court hearing an application to apply effectively
the relevant principles and rules of EU law.128
141. This means that the standard of review applied has to ensure that the objectives and the
scope of the EU law at stake are safeguarded. It also has to take into account the extent of
the decision-maker's discretion in evaluating the facts and drawing conclusions and
findings from them.
142. The case-law of the CJEU provides clarity on how national judges should scrutinise the
discretion of public authorities in several specific contexts.
143. In the context the Environmental Impact Assessment Directive, 2011/92/EU, the CJEU
judgments in Mellor and Gruber129
establish that a decision taken by an administration
not to carry out an environmental impact assessment on a project can be challenged
before a national court by a member of the public concerned. In particular, an effective
judicial review must cover the legality of the reasons for the contested screening
decision130
. This includes the question of whether the project has a likely significant
effect on the environment. Further, with regard to the same directive, the CJEU in
Commission v Germany held that a Member State cannot limit the scope of a judicial
review to the question of whether a decision not to carry out an environmental impact
assessment was valid. It observed that excluding the applicability of judicial review in
cases in which, having been carried out, an environmental impact assessment is found to
be vitiated by defects – even serious defects – would render largely nugatory the
provisions of the directive relating to public participation131
.
144. In the context of Article 6(3) of the Habitats Directive, 92/43/EEC, the CJEU ruled in
Waddenzee132
that the competent public authorities may only authorise an activity in a
protected Natura 2000 site where, taking into account the conclusions of an appropriate
assessment, no reasonable scientific doubt remains that, in the light of the site's
conservation objectives, the activity will not adversely affect the integrity of the site. This
means that, when called upon to review a decision authorising such an activity, the
national judge has to determine whether or not the scientific evidence relied upon by the
public authority leaves no reasonable doubt.
128
Case C-71/14 East Sussex, paragraph 58. 129
Case C-570/13 Gruber, paragraphs 42-50. 130
Case C-75/08 Mellor, paragraph 59. 131
Case C-137/14 Commission v Germany, paragraph 48; and Case C-72/12 Altrip, paragraph 37. 132
Case C- 127/02 Waddenzee, paragraph 59.
41
145. The national judge may thus be called upon to take into account the relevant scientific
evidence, on which environmental measures are normally based. The formulation of the
ruling in Case Waddenzee indicates that the test of whether there is no reasonable doubt is
an objective one and cannot be treated by the national court as a subjective one lying
exclusively within the public authority's own discretion.
146. In the context of a requirement to prepare air quality plans under ambient air quality
legislation, the CJEU in Janecek noted that ‘while the Member States thus have a
discretion, Article 7(3) of Directive 96/62 includes limits on the exercise of that discretion
which may be relied upon before the national courts (see, to that effect, Case C‑ 72/95
Kraaijeveld and Others [1996] ECR I‑ 5403, paragraph 59), relating to the adequacy of
the measures which must be included in the action plan with the aim of reducing the risk
of the limit values and/or alert thresholds being exceeded and the duration of such an
occurrence, taking into account the balance which must be maintained between that
objective and the various opposing public and private interests’133
. Thus, in this
judgment, the CJEU envisages that the scrutiny of the national judge should extend to the
adequacy of measures in the light of the relevant interests at stake in that case. Similarly,
in the context of a requirement on Member States to draw up programmes to reduce
emissions of specific pollutants in order to comply with ceilings on such emissions set by
the National Emissions Ceiling (NEC) Directive, 2016/2284134
, the CJEU in Stichting
Natuur en Milieu held that judicial scrutiny should extend to whether national
programmes contained appropriate and coherent policies and measures capable of
reducing emissions to the levels required by emissions ceilings135
.
147. In the same vein, the intensity of judicial scrutiny that the CJEU expected in Janecek and
Stichting Natuur en Milieu is relevant in the domains of EU water and waste legislation,
where requirements on competent public authorities to prepare plans and programmes
also fulfil a key role in addressing environmental objectives.
148. In Stichting Natuur en Milieu, the CJEU noted the general obligation on Member States
to refrain from taking any measure, general or specific, liable seriously to compromise the
attainment of a result required by a directive136
. This is relevant where it is argued to the
national judge that a decision aimed at implementing one EU environmental law will
harm the implementation of another.
149. Common threads running through the above cases and East Sussex are the importance of
the specificities of individual pieces of EU legislation and the correct interpretation of EU
law during the decision-making process. Much of the case-law mentioned arises from
preliminary references from national courts aimed at enabling them to verify whether the
administrative decision-maker applied a correct interpretation of EU law. In this context,
it is also important to recall that national courts are obliged to apply relevant EU law ex
133
Case C-237/07 Janecek, paragraph 46. 134
Previously 2001/81/EC. 135
Cases C-165 to C-167/09, Stichting Natuur en Milieu. 136
Cases C-165 to C-167/09, Stichting Natuur en Milieu, paragraphs 78 and 79.
42
officio, irrespectively of what the parties in the proceedings invoke if, by virtue of
national law, they must raise points of law based on binding domestic rules which were
not raised by the parties137
.
150. The principle of proportionality is also relevant when account is being taken of the
specificities of EU environmental legislation138
.
(c) Scrutinizing national legislation and regulatory acts
151. As noted in Section C.1.2, EU environmental legislation to safeguard public interests –
including the interest of public involvement – will depend, in part, on national
implementing legislation and general regulatory acts. It cannot be excluded that
legislative and regulatory acts will themselves sometimes be flawed, and more restrictive
in recognizing the rights mentioned in Section C.1 than are warranted by the EU
environmental legislation concerned. Flawed national implementing legislation and
regulatory acts can result in a lack of uniform application of EU environmental law, and
the CJEU has, therefore, recognized the necessity of providing for their review in certain
circumstances.
152. The Aarhus Convention excludes legislative acts from its scope139
and the Environmental
Impact Assessment Directive, 2011/92/EU, excludes from its scope ‘projects the details
of which are adopted by a specific act of national legislation’. However, in Boxus, and
Solvay, the CJEU confirmed that national courts must be ready to scrutinize national
legislative acts to ensure that they meet any conditions that would justify their exclusion
from environmental impact assessment requirements. These cases related to national
legislation that purported to lay down requirements concerning specific elements of
airport and railway infrastructure, independently from the usual administrative
procedures. The CJEU considered that the exception for legislative acts only applies
where certain conditions are met, and observed that the relevant access to justice
provisions of the Aarhus Convention and the Environmental Impact Assessment
Directive, 2011/92/EU would lose all effectiveness if the mere fact that a project is
adopted by a legislative act were to make it immune to any review procedure for
challenging its substantive and procedural legality140
. National courts are therefore
obliged to review whether the conditions justifying exclusion are fulfilled141
.
137
See Case C-72/95 Kraaijeveld, paragraph 57. 138
In joined cases C-293/12, Digital Rights Ireland Ltd and C-594/12 on the rules on general retention of
communication meta data, the CJEU noted at paragraph 47 ‘With regard to judicial review of compliance with
those conditions, where interferences with fundamental rights are at issue, the extent of the EU legislature’s
discretion may prove to be limited, depending on a number of factors, including, in particular, the area
concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the
interference and the object pursued by the interference’. 139
This is because the definition of ‘public authority’ in Article 2(2) of the Aarhus Convention excludes bodies
or institutions acting in a judicial or legislative capacity. 140
Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus, paragraph 53. 141
Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus.
43
153. In Inter-Environnement Wallonie, the CJEU stressed the importance of national courts
scrutinizing legislative acts in order to ensure fulfilment of EU environmental law
requirements concerning plans and programmes142
. In Stadt Wiener Neustadt, the CJEU
referred to the role of the national court in ascertaining whether national legislation was
compliant with the Environmental Impact Assessment Directive, 2011/92/EU in relation
to regularisation of unlawful measures143
. In that case, it held that EU law precluded
national legislation that provided that a prior environmental impact assessment must be
deemed to have been carried out for certain projects that had, in actuality, failed to
undergo an assessment. It noted that such legislation could frustrate the possibility to
obtain an effective remedy under reasonable conditions144
.
(d) Examining the validity of acts adopted by EU institutions and bodies
154. Article 267 of the TFEU provides a means whereby national courts can put questions to
the CJEU on the validity of EU legislation and acts. The use of this possibility is
illustrated by Standley, in which, following questions posed by a national court, the
CJEU, amongst other things, examined the validity of the Nitrates Directive, 91/676/EEC
in the light of the polluter pays principle set out in Article 191 of the TFEU145
. Similarly,
in Safety Hi Tech, the CJEU reviewed the validity of the Ozone Regulation, 3093/94 [now
2037/2000], against the stipulation in Article 191 of the TFEU that EU environmental
policy should aim at a high level of environmental protection146
. Eco-Emballages SA,
which inter alia featured a question about the validity of a Commission directive adopted
under the Packaging Waste Directive, 94/62/EC, shows how Article 267 of the TFEU can
be used in relation to a subsidiary act adopted at EU level147
.
142
Case C-41/11, Inter-Environnement Wallonie, paragraphs 42 to 47. 143
Case C-348/15 Stadt Wiener Neustadt, paragraph 38. 144
Case C-348/15 Stadt Wiener Neustadt, paragraphs 47 and 48. 145
C-293/97 Standley, paragraphs 51 and 52. 146
C-284/95 Safety Hi Tech, paragraph 33 to 61. 147
Joined Cases C-313/15 and C-530/15, Eco-Emballages SA.
44
4. EFFECTIVE REMEDIES
4.1 Introduction
There is a general requirement on every body of a Member State to nullify the unlawful
consequences of a breach of EU environmental law. Member States must also refrain from
taking any measures that can seriously compromise the attainment of a result prescribed by
EU environmental law. Member States have discretion with regard to effective remedies,
provided that they comply with the principles of equivalence and effectiveness.
155. It will generally not be sufficient for a judicial review to determine whether a particular
decision, act or omission was lawful. It will also be necessary for the national court to
consider effective remedies - sometimes referred to as reliefs - where the conduct of the
public authority is found to have been contrary to EU law. The CJEU has derived from
the principle of cooperation in good faith now laid down in Article 4(3) of the TEU a
requirement on every organ of a Member State to nullify the unlawful consequences of a
breach of EU law148
. The duty of cooperation also requires that breaches be prevented
before they occur, with Member States being obliged to refrain from taking any measures
that can seriously compromise the attainment of a result prescribed by EU environmental
law149
. The legal systems of the Member States must therefore provide for effective
remedies that comply with these requirements.
156. The detailed procedural rules applicable to effective remedies are a matter for the
domestic legal order of each Member State, under the principle of the procedural
autonomy of the Member States. This is provided that they are not less favourable than
those governing similar domestic situations (principle of equivalence) and that they do
not render impossible in practice or excessively difficult the exercise of rights conferred
by the EU legal order (principle of effectiveness)150
. With regard to the latter principle,
the CJEU has also relied on standards deriving from Article 47(1) of the Charter of
Fundamental Rights of the EU which enshrines the right to an effective remedy151
.
157. The Aarhus Convention also refers to effective remedies. Article 9(4) requires that
judicial review procedures to challenge decisions, acts and omissions shall provide
adequate and effective remedies, including ‘injunctive relief’ as appropriate. This is an
auxiliary requirement to those of Article 9(1),(2) and (3) of the Aarhus Convention.
148
Case C-201/02 Wells, paragraphs 64-65. 149
Case C-129/96 Inter-Environnement Wallonie , paragraph 45. 150
Case C-201/02 Wells, paragraph 67, and Case C-420/11 Leth, paragraph 38. 151
Case C-71/14 East Sussex, paragraph 52.
45
4.2 Remedies in case of minor procedural defects
Minor procedural defects do not require remedies, provided it can be established – without
placing any burden on the applicant for judicial review - that they did not impact on the
contested decision.
158. In Altrip, which concerned questions of interpretation arising from alleged irregularities
in an environmental impact assessment carried out on a proposed flood retention scheme,
the CJEU noted that, ‘it is unarguable that not every procedural defect will necessarily
have consequences that can possibly affect the purport of a decision.’152
It ruled that
effective remedies such as revocation need not arise if a contested decision would not
have been different without the procedural defect invoked153
. However, it also ruled that
the applicant for judicial review could not be required to prove a causal link between the
procedural defect and the contested decision154
. Instead, it was for others to provide
evidence that the procedural defect would have made no difference to the outcome.155
4.3 Suspension, revocation or annulment of unlawful decisions or acts, including
disapplication of legislation and regulatory acts
National courts must consider taking general or particular measures to address a lack of
compliance with EU environmental law. These may need to include the suspension,
revocation or annulment of unlawful decisions or acts, and the disapplication of legislation
and regulatory acts.
159. In Wells, which concerned the grant of a consent for mining operations without an
environmental impact assessment having first been carried out, the CJEU considered the
scope of the obligation to remedy the failure to carry out an environmental impact
assessment. It held that ‘the competent authorities are obliged to take, within the sphere
of their competence, all general or particular measures for remedying the failure to carry
out an assessment of the environmental effects of a project [156
]. It also noted that '(i)t is
for the national court to determine whether it is possible under domestic law for a
consent already granted to be revoked or suspended in order to subject the project to an
assessment of its environmental effects’157
.The CJEU saw the suspension or revocation of
152
C-72/12 Altrip, paragraph 49. 153
C-72/12 Altrip, paragraph 51. 154
C-72/12 Altrip, paragraphs 52-54. 155
However, the possibility of disregarding minor procedural defects for purpose of effective remedies does not
preclude a judge from declaring that a procedural defect has occurred. 156
Case C-201/02 Wells, paragraph 65. 157
Case C-201/02 Wells, paragraph 69.
46
the contested consent as being a step towards fulfilling an omitted requirement, namely
the undertaking of an environmental impact assessment158
.
160. In Boxus, and Solvay, the CJEU considered how a national court should deal with a
situation where national legislation did not meet the criteria to justify the non-application
of environmental impact assessment requirements. It ruled that the national court should
be ready to set aside the flawed legislation159
. In Stadt Wiener Neustadt the CJEU
considered that national legislation which could frustrate the possibility to obtain an
effective remedy of the kind referred to in Wells was incompatible with the requirements
of the Environmental Impact Assessment Directive, 2011/92/EU160
. It was for the
national court to ascertain this161
.
Some national courts have the power to limit the effects of the annulment of regulatory acts
found to be contrary to EU environmental law. However, this power may only be exercised if
stringent conditions are met.
161. Where a breach of EU environmental law requires the annulment of regulatory acts (in
line with the powers granted to the courts by national law), the national court may face a
dilemma: how to limit any undesirable environmental effects caused by the annulment
itself, especially where some time will elapse before replacement provisions can be put in
place? The CJEU set out criteria for addressing this issue in Inter-Environnement
Wallonie162
, which concerned a legally flawed nitrates action programme, and
Association France Nature Environnement163
, which concerned a legally flawed decree
on strategic environmental impact assessment. It confirmed that a national court is
entitled to limit the legal effects of annulment, provided that such limitation is dictated by
an overriding consideration linked to environmental protection.
162. However, the power of the national court to limit the effects of annulment may only be
exercised if certain conditions are met164
:
the contested provision of national law constitutes a measure correctly transposing
EU law on environmental protection;
158
Case C-201/02 Wells, paragraph 60. 159
Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus, paragraph 57; and Case C-182/10 Solvay
and others, paragraph 52. 160
Case C-348/15 Stadt Wiener Neustadt, paragraphs 45 to 48. 161
Case C-348/15 Stadt Wiener Neustadt, paragraph 31. 162
Case C-41/11 Inter-Environnement Wallonie. 163
Case C-379/15 Association France Nature Environnement. 164
Case C-379/15 Association France Nature Environnement, paragraph 38.
47
the adoption and coming into force of a new provision of national law do not
make it possible to avoid the damaging effects on the environment arising from
annulment of the contested provision of national law;
the annulment would have the effect of creating a legal vacuum concerning
transposition which would be more damaging to the environment, in the sense that
that annulment would result in lesser protection;
the effects of a contested provision exceptionally kept in force last only for the
period strictly necessary for adopting measures to remedy the irregularity.
4.4 Instructions requiring omitted measures to be adopted
Competent administrative authorities must consider taking general or particular measures to
address a lack of compliance with EU environmental law. Should they fail to do so, it is for
the national court having jurisdiction to take any necessary measure.
163. In Janecek165
, the CJEU considered the failure by a public authority to adopt a legally
required air pollution action plan to address a problem of high levels of particulate matter,
and confirmed that a national court can require the public authority to adopt such a plan.
This case therefore points to the role of national courts in ordering omitted measures to be
adopted.
164. Janecek166
and Client Earth167
and Altrip168
all go further, indicating that the role of the
national court extends to checking the content of decisions and acts to ensure that they
fulfil EU law requirements. As a corollary, effective remedies therefore need to include
steps that address content deficiencies, for example an instruction requiring an already
adopted air quality action plan to be revised169
.
4.5 Making good unlawful harm caused by an unlawful decision, act or omission
165
Case C-237/07 Janecek, paragraphs 39-42 166
Case C-237/07 Janecek, paragraph 46 167
Case 404/13 Client Earth, paragraph 58. In this case, where the context involved binding air quality limit
values under the Air Quality Directive, 2008/50/EU, the CJEU held that ‘where a Member State has failed to
comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not
applied for a postponement of the deadline as provided for by Article 22 of the directive, it is for the national
court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any
necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan
required by the directive in accordance with the conditions laid down by the latter’ 168
Case C-72/12 Altrip. 169
See footnote 163.
48
Remedies should include measures aimed at making good the unlawful harm caused by an
unlawful decision, act or omission. Such measures need to cover both compensation for
pecuniary damage and redress for unlawful harm to the environment.
165. By the time a contested decision, act or omission is legally challenged, harm may have
already resulted. In Wells the CJEU held that a Member State is required to make good
any harm caused by a failure to comply with EU environmental law170
. In that case, the
CJEU mentioned financial compensation for the environmental claimant. However, as
can be seen from subsequent case-law, notably in Grüne Liga Sachsen171
, the possibility
of redress also extends to the environment itself – in particular where compliance with the
infringed requirement would have entailed avoiding or compensating for environmental
damage.
4.5.1 Compensation for pecuniary damage
Under the doctrine of state liability, a breach of the requirements of EU environmental law
may confer on the public concerned a right to compensation for pecuniary damage. It is for
the national courts to determine whether the three conditions for the liability of the EU law
to which the right to compensation is subject are met.
166. In Leth, which concerned a claim for compensation for alleged property de-valuation
resulting from the expansion of an airport without an environmental impact assessment,
the CJEU shed light on the possibility of obtaining pecuniary compensation for non-
fulfilment of a requirement of EU environmental law. It confirmed that the prevention of
pecuniary damage was covered by the objective of protection pursued by the
Environmental Impact Assessment Directive, 2011/92/EU, and that it was for the
domestic legal order of each Member State to provide detailed procedural rules covering
compensation claims, subject to the principles of equivalence and effectiveness172
. It
recalled settled case-law establishing a doctrine of state liability according to which
persons who have been harmed have a right to reparation if three conditions are met:
the rule of European Union law infringed must be intended to confer rights on
them;
170
Case C-201/02 Wells, paragraph 66. 171
Case C-399/14 Grüne Liga Sachsen. 172
Case C-420/11 Leth, paragraphs 36 and 38.
49
the breach of the rule must be sufficiently serious; and
there must be a causal link between that breach and the loss or damage sustained
by the individuals173
.
It stressed that the nature of the rule breached must be taken into account, doubting that
the failure to carry out an environmental impact assessment could by itself constitute the
reason for the decrease in value of a property174
. It also confirmed that the question of
whether or not the conditions for compensation were met was one for the national court.
167. The rationale of the judgment in Leth applies to other breaches of EU environmental law
where the legislation at stake aims at protecting or granting individual rights, including
access to justice rights.
4.5.2 Addressing unlawful harm to the environment
168. In Grüne Liga Sachsen, the CJEU was presented with questions of interpretation of the
Habitats Directive, 92/43/EEC, in a situation in which a bridge had already been
constructed in a site protected under that directive without the necessary safeguards
having first been adopted. The CJEU effectively required the situation to be addressed
retrospectively in a manner that corresponded as closely as possible to that in which an
unexecuted project would have been. Similar conditions needed to be fulfilled mutatis
mutandis. Thus, the impact of the bridge needed to be appropriately assessed, and even
the option of demolishing the bridge considered as a possible solution to preventing
damage175
. Further, it can be deduced from the judgment that compensation needed to be
provided for any unlawful damage already done to the protected site176
.
169. Any harm to the environment has to be addressed in an effective manner which is in line
with the objectives of the EU environmental legislation concerned177
.
4.6 Interim measures
A national court dealing with a dispute governed by EU environmental law must be in a
173
Case C-420/11 Leth, paragraph 41. 174
Case C-420/11 Leth, paragraph 46. 175
Case C-399/14 Grüne Liga Sachsen, paragraph 75. 176
This is because the CJEU required the future of the bridge to be considered in the context of Article 6(4) of
the Habitats Directive, 92/43/EEC. This requires compensatory measures if a damaging project is allowed to
proceed on the grounds of absence of alternative solutions and overriding public interest. 177
See also Case C-104/15 Commission v Romania, paragraph 95, with regard to the importance of taking
account of requirements of results when addressing non-compliance. This case concerned Articles 4 and 13(2)
of the Mining Waste Directive, 2006/21/EC.
50
position to order interim measures.
170. Interim measures – referred to as ‘injunctive relief’ in Article 9(4) of the Aarhus
Convention - allow a court to order that a contested decision or act not be implemented or
that some positive measure be taken before the court delivers its final judgment. The aim
is to avoid harm arising from a decision or act that might ultimately turn out to be
unlawful.
171. In Križan, which concerned a permit for a landfill, the CJEU was asked whether the
access to justice provisions of what is now the Industrial Emissions Directive,
2010/75/EU, allowed for interim measures (despite not specifically mentioning them). It
stated that ‘the exercise of the right to bring an action provided for by Article 15a of [the
then] Directive 96/61 would not make possible effective prevention of that pollution if it
were impossible to prevent an installation which may have benefited from a permit
awarded in infringement of that directive from continuing to function pending a definitive
decision on the lawfulness of that permit. It follows that the guarantee of effectiveness of
the right to bring an action provided for in that Article 15a requires that the members of
the public concerned should have the right to ask the court or competent independent and
impartial body to order interim measures such as to prevent that pollution, including,
where necessary, by the temporary suspension of the disputed permit’178
.
172. In Križan, the CJEU also recalled that the possibility of interim measures is a general
requirement of the EU legal order. In the absence of EU rules, and in line with the
principle of procedural autonomy, it is up to Member States to lay down the detailed
conditions for granting interim measures.
173. The CJEU itself has defined criteria for deciding on applications for interim measures
where it has jurisdiction itself. Orders it has made, including in the field of EU
environmental law, refer to the need for the CJEU to be presented with a prima facie case,
the urgency of the matter and the balance of interests179
.
178
Case C-416/10 Križan, paragraph 109. 179
See for example Commission v Malta, C-76/08 R. Point 21 states that: 'It is settled case-law that the judge
hearing an application for interim measures may order interim relief only if it is established that such an order
is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and
irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is
reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the
interests involved (see, inter alia, the order in Case C-404/04 P-R Technische Glaswerke Ilmenau v Commission
[2005] ECR I-3539, paragraph 10, and the case cited)'. Point 22 states that 'The conditions thus imposed are
cumulative, so that an application for interim measures must be dismissed if one of them is not met (see, inter
alia, Technische Glaswerke Ilmenau v Commission, paragraph 11, and the case cited).'
51
5. COSTS
5.1. Introduction
Member States must ensure that judicial review procedures to challenge decisions, acts and
omissions relating to EU environmental law are not prohibitively expensive.
174. The costs of a judicial review procedure present a potential major deterrent to bringing
cases before a national court. This is especially true in environmental cases, which are
often initiated to protect general public interests and without any financial gain in view.
Indeed, after weighing the potential benefits of litigation against the risk of incurring high
litigation costs, the public concerned may refrain from seeking a judicial review even in
well justified cases.
175. To address the potential deterrent effect of costs, the Aarhus Convention in its Article
9(4) provides that the review procedures covered by Article 9(1), (2) and (3) 'shall' not be
prohibitively expensive. Because it is an auxiliary requirement to the provisions of Article
9(1), (2) and (3) of the Aarhus Convention, the cost provision of Article 9(4) is relevant
across the different kind of legal challenge related to EU environmental law that these
provisions cover.180
176. Certain EU directives include an explicit requirement on costs based on the wording of
Article 9(4)181
. There is existing CJEU case-law that interprets the cost provisions of the
Environmental Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions
Directive, 2010/75/EU182
, which are both based on the cost provision of Article 9(4) of
the Aarhus Convention.
177. Further, in Edwards and Pallikaropoulos, the CJEU held that the requirement that the
cost of a procedure should not be prohibitively expensive ‘pertains, in environmental
matters, to the observance of the right to an effective remedy enshrined in Article 47 of
the Charter of Fundamental Rights of the European Union, and to the principle of
effectiveness, in accordance with which detailed procedural rules governing actions for
safeguarding an individual's rights under European Union law must not make it in
practice impossible or excessively difficult to exercise rights conferred by European
Union law.’183
. A cost regime has therefore to be shaped in such a way as to guarantee
that rights conferred by the EU can be effectively exercised.
180
See also Case C-268/06 Impact, paragraph 51. 181
Article 11(4) of the Environmental Impact Assessment Directive, 2011/92/EU; Article 25(4) of the Industrial
Emissions Directive, 2010/75/EU; and Article 23 of the Seveso III Directive, 2012/18/EU. 182
Case C-427/07 Commission v Ireland; C-260/11 Edwards and Pallikaropoulos; and Case C-530/11
Commission v United Kingdom. 183
Case C-260/11 Edwards and Pallikaropoulos, paragraph 33.
52
178. In this regard, the CJEU has developed a number of criteria aimed at avoiding that
litigation costs become prohibitively expensive.
5.2. Criteria for assessing whether costs are prohibitive
The requirement that judicial review procedures not be prohibitively expensive is subject to
interpretation at EU level. It relates to all the costs of participating in a procedure,
including financial guarantees that a claimant is asked to provide, and applies to all judicial
stages. Claimants are entitled to reasonable predictability as regards their exposure to
costs. Where a national court is empowered to determine what costs an unsuccessful
claimant should pay, it may take into account subjective considerations related to the
claimant while also ensuring that the costs are not objectively unreasonable.
a) National courts and provisions on costs
179. Article 3(8) of the Aarhus Convention provides that the powers of national courts to
award reasonable costs in judicial proceedings are not to be affected. The CJEU case-law
also confirms that the cost provision does not prevent national courts from making cost
orders184
.
180. However, under Article 9(4) of the Aarhus Convention, costs cannot be prohibitive. In
this regard, the CJEU has confirmed that interpretation of the notion of 'prohibitive' costs
cannot be a matter for national law alone, and that, in the interests of uniform application
of EU law and the principle of equality, it must be given an autonomous and uniform
interpretation throughout the European Union185
.
181. It has observed that the requirement in the Environmental Impact Assessment Directive,
2011/92/EU, and in the Industrial Emissions Directive, 2010/75/EU, according to which
procedures must not be prohibitively expensive ‘means that the persons covered by those
provisions should not be prevented from seeking, or pursuing a claim for, a review by the
courts that falls within the scope of those articles by reason of the financial burden that
might arise as a result. ’186
182. The CJEU has looked at how the cost proviso is enshrined in national law. The CJEU has
held that transposition187
should ensure for the claimant a reasonable predictability as
regards both whether the costs of the judicial proceedings in which he becomes involved
are payable by him and their amount188
.
184
Case C-427/07 Commission v Ireland, paragraph 92 185
Case C-260/11 Edwards and Pallikaropoulos, paragraphs 29-30 186
Case C-260/11 Edwards and Pallikaropoulos, paragraph 35 187
The case-law concerns the cost provision as found in the Environmental Impact Assessment Directive,
2011/92/EU, and the Industrial Emissions Directive, 2010/75/EU, which are subject to the duty of transposition
applicable to directives. 188
Case C-530/11 Commission v United Kingdom, paragraph 58
53
183. The CJEU has held that the cost proviso is to be interpreted in the context of all the costs
arising from participation in judicial proceedings189
. Therefore, account needs to be taken
of all of the costs borne by the party concerned, such as legal representation costs, court
fees, and the cost of evidence and experts' fees.
184. Further, in the context of interim measures, the CJEU has clarified that the cost provision
also applies to financial costs resulting from measures which the national court might
impose as a condition for the grant of interim measures in the context of disputes arising
from the Environmental Impact Assessment Directive, 2011/92/EU, and Industrial
Emissions Directive, 2010/75/EU.190
More specifically, it has looked at costs related to
financial guarantees (such as bonds or cross-undertakings in damages) that a claimant is
asked to provide to compensate for delays to a project that result from an unsuccessful
legal challenge. On the one hand, it has stated that the requirement that proceedings not
be prohibitively expensive cannot be interpreted as immediately precluding the
application of a financial guarantee where that guarantee is provided for by national
law191
. On the other, it has indicated that ‘it is incumbent upon the court which rules on
this issue to make sure that the resulting financial risk for the claimant is also included in
the various costs generated by the case when it assesses whether or not the proceedings
are prohibitively expensive.’192
185. A further criterion relates to the judicial instances to which the cost provision applies. The
CJEU has clarified that it is applicable at all stages of proceedings, i.e. not only at the
stage of first-instance proceedings, but also at the stages of an appeal or second appeal193
.
b) Applying the ‘loser pays principle’ and other cost-allocation approaches when
deciding on costs
186. The CJEU has addressed how national courts should apply the ‘loser pays principle’
when making cost orders in respect of unsuccessful environmental claimants. Under this
principle, a national court can order the party who loses a case to bear the entire cost
burden of the procedure, including the opposing side's costs. The case-law establishes
that, in the cost decision of the national court, both subjective and objective
considerations are relevant. The case-law also rejects the proposition that, because a
claimant makes a legal challenge, the costs cannot have been prohibitive for them194
.
187. Subjective elements include:
the financial situation of the person concerned;
189
Case C-427/07 Commission v Ireland, paragraph 92. 190
Case C-530/11 Commission v United Kingdom, paragraph 66. By way of analogy, this is also relevant to the
Seveso III Directive, 2012/18/EU. 191
Case C-530/11 Commission v United Kingdom, paragraph 67. 192
Case C-530/11 Commission v United Kingdom, paragraph 68. 193
Case C-260/11 Edwards and Pallikaropoulos, paragraphs 45 and 48. 194
Case C-260/11 Edwards and Pallikaropoulos, paragraph 43.
54
whether the claimant has a reasonable prospect of success;
the importance of what is at stake for the claimant and for the protection of the
environment;
the complexity of the relevant law and procedure and
the potentially frivolous nature of the claim at its various stages195
.
188. Over and above considering the individual situation of the applicant (subjective test) and
the individual facts of the case, a national court should apply an objective test aimed at
ensuring that the costs are not objectively unreasonable. The CJEU has stressed this in the
context of members of the public and their associations having an active role to play in
defending the environment196
. The costs of proceedings must, therefore, neither exceed
the financial resources of the person concerned nor appear, in any event, to be objectively
unreasonable197
.
189. Where the loser pays principle applies, a cost-allocation approach involving cost-capping
may prove useful. This provides greater predictability on – and greater control over – cost
exposure. It involves a mechanism – the protective cost order – whereby a ceiling is
established at the outset of proceedings on how much costs a claimant will have to pay if
they lose – and, in reciprocal cost-capping, how much costs they can recover if they win.
In a one-way cost cap, the costs which have to be borne by a claimant if a case is lost are
limited to a certain amount, thereby increasing the predictability of the financial risk.
However, in reciprocal cost-capping, the public authority's liability to pay a successful
claimant is also limited and any excess will have to be met by the claimant alone.
190. The CJEU considered a system of cost-capping in Commission v United Kingdom, noting
that, in principle, the possibility for the court hearing a case to grant a protective cost
order ensures greater predictability as to the cost of the proceedings and contributes to
compliance with the requirement on prohibitive costs198
. However, it considered that
several specific features of the Member State's cost-capping system – such as the absence
of an obligation to grant protection where the cost of the proceedings is objectively
unreasonable and the exclusion of protection where only the particular interest of the
claimant was involved - meant that it did not amount to a method that could satisfy the
requirement that costs not be prohibitive.
191. The reasoning that the CJEU applied to a specific cost-capping system in Commission v
United Kingdom is relevant by analogy to other approaches to cost-allocation. Thus,
where a national court enjoys discretion to order each party, including a successful
claimant, to pay his or her own costs (back-to-back cost allocation), it needs to take
account of the CJEU criterion that the cost of proceedings not be objectively
195
Case C-260/11 Edwards and Pallikaropoulos, paragraph 42. 196
Case C-260/11 Edwards and Pallikaropoulos, paragraph 40. 197
Case C-530/11 Commission v United Kingdom, paragraph 47. 198
C-530/11 Commission v United Kingdom, paragraph 54.
55
unreasonable. Fixing an environmental claimant with having to pay his or her own costs
even if he or she wins a case might be argued to be inherently unreasonable and
inconsistent with the requirements of Article 9(4) of the Aarhus Convention that
procedures must be fair and equitable.
192. ‘One-way cost shifting’ is an approach to cost-allocation under which a successful
environmental claimant can recover their own costs (as under the loser pays principle) but
an unsuccessful one is spared, in whole or in part, from having to pay the costs of the
other side. Cost shifting may extend to the state paying part of an unsuccessful claimant's
costs – as where the litigation is deemed to reflect a strong public interest. Thus, one-way
cost shifting can present features which address potential shortcomings of other cost-
allocation approaches (in terms of the need for costs not to be objectively unreasonable
and in terms of procedures needing to be fair and equitable).
193. Some cost shifting regimes are conditional in order to limit their use, with the national
court charged with allocating costs having to apply criteria such as the significance of the
case, the impact for the environment, the seriousness of the breach of law or the conduct
of the parties. However, a discretion which is too wide may undermine cost predictability,
an aspect that the CJEU case-law identifies as important, particularly where judicial
proceedings entail high lawyers' fees. It may also result in the regime failing to meet the
overall criterion of costs not being objectively unreasonable199
.
5.3 Legal aid
194. Article 9(5) of the Aarhus Convention requires the contracting parties to consider the
establishment of appropriate assistance mechanisms to remove or reduce financial and
other barriers to access to justice. This provision stops short of requiring that a legal aid
scheme is provided and EU secondary environmental legislation is silent on the matter.
Member States may therefore choose whether or not to have a legal aid scheme which
contributes to reducing the cost risk of litigation in environmental cases. However, the
existence of a legal aid regime may not in itself demonstrate that costs are not prohibitive,
if access to legal aid is means-tested and only open to individuals. This is because the
requirement that costs must not be prohibitive applies to individuals with a capacity to
pay as well as to associations.
195. At the same time, it should be recalled that Article 47(3) of the Charter of Fundamental
Rights does require that ‘legal aid shall be made available to those who lack sufficient
resources in so far as such aid is necessary to ensure effective access to justice’. This
provision leaves Member States a free choice of the means to be used in guaranteeing
litigants legal aid in order to ensure that they enjoy an effective right of access to a court.
Member States are thus free to institute their legal aid schemes in the way they consider
appropriate. Examples include access to pre-litigation advice, legal assistance and
representation in court, and exemption from – or assistance with – the cost of
199
Case C-530/11 Commission v United Kingdom , paragraph 47.
56
proceedings. The right to legal aid is not absolute and may be subject to restrictions, as is
the right of access to a court. Member States will therefore be free to impose conditions
on the granting of legal aid, based, for example, on the prospects of an applicant’s
success in the proceedings. However, these conditions shall not deprive individuals of the
‘practical and effective’ access to a court to which they are entitled200
.
200
See 'Explanations relating to the Charter of Fundamental Rights', Article 47 (3).
57
6. TIME LIMITS, TIMELINESS AND THE EFFICIENCY OF PROCEDURES
Member States are entitled to require that environmental claimants apply for judicial review
within specified time limits which are reasonable. Under Article 9(4) of the Aarhus
Convention, Member States have to ensure that judicial review procedures are conducted in
a timely manner.
196. A number of temporal considerations are relevant to environmental access to justice:
requirements that environmental claimants must bring their challenges within specified
time limits, and requirements that judicial review procedures should be conducted in a
timely manner.
197. In Stadt Wiener Neustadt, the CJEU confirmed that it is compatible with EU law to lay
down reasonable time limits for bringing proceedings in the interest of legal certainty.
This protects both the individual and the administrative authority concerned201
.
198. Timeliness of court procedures is a key guarantee that judicial review will be efficient.
Accordingly, Article 9(4) of the Aarhus Convention requires that the procedures referred
to in Article 9(1), (2) and (3) are to be timely.
199. Timely procedures serve several purposes. They enable legal clarity to be provided and
legal challenges resolved, without undue delay. Lengthy procedures tend to generate
greater litigation costs, increasing the financial burden of the parties to a legal dispute;
they may also cause delays to projects and other economic activities that are ultimately
confirmed to be lawful. Timely procedures are thus in the interest not only of
environmental claimants but of all parties to legal disputes, including economic operators.
200. The requirement in Article 9(4) of the Convention that procedures must be timely is not
sufficiently clear and unconditional to be directly applicable and must therefore be
transposed into national law in order to take effect.
201. A general obligation to ensure a reasonable length of proceedings is also enshrined in
Article 47(2) of the Charter of Fundamental Rights, which corresponds to Article 6(1) of
the European Convention on Human Rights on the right to a fair trial.
201
Case C-348/15 Stadt Wiener Neustadt, paragraph 41.
58
7. PRACTICAL INFORMATION
Practical information needs to be provided to the public on access to judicial review
procedures.
202. According to Article 9(5) of the Aarhus Convention, the contracting parties ‘shall ensure
that information is provided to the public on access to […] judicial review procedures’.
The obligation to inform the public about their access to justice rights was also taken into
account in certain EU secondary legislation which transposes the requirements of the
Aarhus Convention202
. The obligation to inform the public applies to procedures under
Articles 9(1), (2) and (3) of the Convention.
203. With reference to the obligation now found in Article 11 (5) of the Environmental Impact
Assessment Directive, 2011/92/EU203
, the CJEU in its judgment in Commission v Ireland
highlighted that ‘the obligation to make available to the public practical information on
access to administrative and judicial review procedures […] amounts to an obligation to
obtain a precise result which the Member States must ensure is achieved’.204
It also held
that ‘in the absence of any specific statutory or regulatory provision on the rights thus
offered to the public, the mere availability, through publications or on the internet, of
rules concerning access to administrative and judicial review procedures and the
possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently
clear and precise manner, that the public concerned is in a position to be aware of its
rights on access to justice in environmental matters’205
204. Member States have a wide discretion in how they fulfil the requirement. However,
Commission v. Ireland confirms that it is insufficient for Member States to merely rely on
the publication of national rules on access to justice and the accessibility of relevant
national court decisions. The CJEU reference to ensuring that the public concerned is
made aware of its access to justice rights in a sufficiently clear and precise manner points
to the need for Member States to consider, first, the addressees of the information,
second, the content of the information and, third, the manner of presenting it.
205. In terms of addressees, it should be ensured that the information can reach a broad and
representative public. Providing practical information only on a website may be
insufficient, given that a considerable section of the population might not have access to
web-based resources. While it is an effective and efficient tool it should be complemented
by other measures.
202
For example, Article 11 (5) of the Environmental Impact Assessment Directive, 2011/92/EU. 203
Previously Article 10(6) of Directive 85/337/EEC. 204
Case C-427/07 Commission v Ireland, paragraph 97 (emphasis added). 205
Case C-427/07 Commission v Ireland, paragraph 98.
59
206. In terms of content, information on the review procedure should include all relevant
aspects in order to facilitate a decision of a member of the public on whether or not to
bring a case to court.
207. The information should be complete, accurate and up-to-date206
, highlighting relevant
changes that occur in relation to review procedures. Use of out-of-date or misleading
information may have serious consequences and arrangements should be in place to avoid
this. All the sources of law used to determine the conditions of access should be covered,
including national case-law where this plays an important role.
208. As for the manner of presenting information, the information should be clear and
understandable for a non-lawyer.
209. Also relevant in this context is Article 3(3) of the Aarhus Convention which provides that
each party ‘shall promote environmental education and environmental awareness
amongst the public, especially on how to obtain access to information, to participate in
decision-making and to obtain access to justice in environmental matters’.
206
See also the information available on access to justice via the e-justice portal, which has to be regularly
updated by Member States: https://e-justice.europa.eu/content_access_to_justice_in_environmental_matters-
300-en.do
60
D. CONCLUSION
210. Analysis shows that, as interpreted by the CJEU, existing requirements of the EU acquis,
in particular those stemming from EU secondary environmental law and international
commitments, already provide a coherent framework for access to justice in
environmental matters. The existing requirements address all key aspects of the subject,
ensuring that members of the public, including environmental NGOs, are entitled to bring
cases to national courts and to have those cases correctly examined and made subject to
effective remedies. Furthermore, successive judgments delivered over the past decade
show the importance the CJEU attaches to access to national courts as a means of
ensuring the effectiveness of EU law. Cases brought to national courts are not only a
means of challenging decisions, acts and omissions of Member State public authorities on
the basis of EU environmental law. Via preliminary references under Article 267 of the
TFEU, they also make it possible for the CJEU to rule on the interpretation and validity
of EU acts.
211. The present Notice facilitates access to the national courts by explaining and interpreting
existing legal requirements. In this way, it contributes to improving the application of EU
law. It is aimed at helping Member States, national courts, legal practitioners and the
public, and the Commission will follow with interest how these intended beneficiaries
make use of it, and how access to justice in environmental matters evolves across the EU.
212. The role of the CJEU will remain paramount in the interpretation of EU law relevant to
access to justice in environmental matters, including the fulfilment of requirements
stemming from Article 19(1) of the TEU on effective judicial protection. In this regard,
the existing case-law shows the fruitful results of the co-operation between the CJEU and
national courts within the context of Article 267 of the TFEU. This may be expected to
continue. The Commission will follow carefully and assess relevant new case-law that the
CJEU delivers, and will consider updating this Notice in the future should that prove
necessary.
61
ANNEX I: List of relevant case-law of the CJEU for access to justice in environmental
matters:
Judgment of 30 May 1991, Commission v Germany C- 361/88, EU:C:1991:224
Judgment of 17 October 1991, Commission v Germany C-58/89, EU:C:1991:391
Judgment of 24 October 1996, Kraaijeveld C-72/95, EU:C:1996:404
Judgment of 14 July 1998, Safety Hi-Tech C-284/95, EU:C:1998:352
Judgment of 29 April 1999, Standley C-293/97, EU:C:1999:215
Judgment of 7 December 2000, Commission v France C-374/98, EU:C:2000:670
Judgment of 7 January 2004, Wells C-201/02, EU:C:2004:12
Judgment of 7 September 2004, Waddenzee C-127/02, EU:C:2004:482
Judgment of 13 March 2007, Unibet C‑432/05, EU:C:2007:163
Judgment of 25 July 2008, Janecek C-237/07, EU:C:2008:447
Judgment of 15 April 2008, Impact C-268/06, EU:C:2008:223
Judgment of 3 July 2008, Commission v Ireland C-215/06, EU:C:2008:380
Judgment of 16 July 2009 Commission v Ireland C-427/07, EU:C:2009:457
Judgment of 30 April 2009, Mellor C-75/08, EU:C:2009:279
Judgment of 15 October 2009, Djurgården C-263/08, EU:C:2009:631
Judgment of 12 May 2011, Bund für Umwelt und Naturschutz C-115/09, EU:C:2011:289
Judgment of 18 October 2011, Boxus Joined Cases C-128/09 to C-131/09, C-134/09 and C-
135/09, EU:C:2011:667
Judgment of 8 March 2011 LZ I C-240/09, EU:C:2011:125
Judgment of 26 May 2011, Stichting Natuur en Milieu C-165 to C-167/09, EU:C:2011:348
Judgment of 16 February 2012, Solvay and others C-182/10, EU:C:2012:82
Judgment of 28 February 2012 Inter-Environnement Wallonie C-41/11, EU:C:2012:103
Judgment of 15 January 2013, Križan C-416/10, EU:C:2013:8
Judgment of 14 March 2013, Leth C-420/11, EU:C:2013:166
Judgment of 11 April 2013, Edwards and Pallikaropoulos C-260/11, EU:C:2013:221
62
Judgment of 3 October 2013, Inuit C-583/11P, EU:C:2013:625
Judgment of 7 November 2013, Altrip C-72/12, EU:C:2013:712
Judgment of 19 December 2013, Fish Legal and Shirley C‑279/12, EU:C:2013:853
Judgment of 13 February 2014, Commission v United Kingdom C-530/11, EU:C:2014:67
Judgment of 19 November 2014, Client Earth EU C-404/13:C:2014:2382
Judgment of 6 October 2015, East Sussex C-71/14, EU:C:2015:656
Judgment of 15 October 2015, Commission v Germany C-137/14, EU:C:2015:683
Judgment of 14 January 2016, Grüne Liga Sachsen C-399/14, EU:C:2016:10
Judgment of 21 July 2016 Commission v Romania C-104/15, EU:C:2016:581
Judgment of 15 October 2015, Gruber C-570/13, EU:C:2015:683
Judgment of 28 Juin 2016, Association France Nature Environnement - C-379/15
EU:C:2016:603
Judgment of 8 November 2016, LZ II C-243/15, EU:C:2016:838
Judgment of 10 November 2016, Eco-Emballages, C-313/15 and C-530/15 EU:C:2016:859
Judgment of 17 November 2016, Stadt Wiener Neustadt C-348/15. EU:C:2016:882
Order of the President of the Court of 24 April 2008 in Commission v Malta C-76/08 R
EU:C:2008:252
Opinion 1/09, Creation of a Unified Patent Litigation System, EU:C:2011:123
63
ANNEX II: Current EU instruments cited
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of
wild fauna and flora ('the Habitats Directive'),OJ L 206, 22.7.1992, p. 7;
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters
against pollution caused by nitrates from agricultural sources ('the Nitrates Directive'), OJ L
375, 31.12.1991, p.1;
European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging
and packaging waste ('the Packaging Waste Directive '), OJ L 365, 31.12.1994,p10;
Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human
consumption ('the Drinking Water Directive'), OJ L 330, 5.12.1998, p. 32. This replaces
Directive 80/778/EEC;
Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on
substances that deplete the ozone layer ('the Ozone Regulation'), OJL 244, 29.9.2000, p.1. This
replaces Regulation (EC) No 3093/94;
Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of water policy ('the Water
Framework Directive'), OJ L 327, 22.12.2000, p. 1;
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and programmes on the environment ('the Strategic
Environmental Assesment' or 'SEA Directive') OJL 197, 21/07/2001 p.30;
Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on
public access to environmental information and repealing Council Directive 90/313/EEC ('the
Access to Environmental Information Directive'), OJ L 41, 14.2.2003, p. 26;
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003
providing for public participation in respect of the drawing up of certain plans and
programmes relating to the environment and amending with regard to public participation and
access to justice Council Directives 85/337/EEC and 96/61/EC ('the Public Participation
Directive'), OJ L 156, 25.6.2003, p. 17;
Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on
environmental liability with regard to the prevention and remedying of environmental
damage ('the Environmental Liability Directive'), OJ L 143, 30.04.2004, p. 56;
Council Decision of 17 February 2005 on the conclusion, on behalf of the European
Community, of the Convention on access to information, public participation in decision-
making and access to justice in environmental matters (2005/370/EC), OJL 124, 17.5.2005,
p.1;
64
Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6
September 2006 on the application of the provisions of the Aarhus Convention on Access
to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters to Community institutions and bodies ('the Aarhus Regulation'), OJL
264, 25.9.2006, p.13;
Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006
concerning the management of bathing water quality and repealing Directive 76/160/EEC
('the Bathing Water Directive'), OJ L 64, 4.3.2006, p. 37;
Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on
the management of waste from extractive industries and amending Directive 2004/35/EC
('the Mining Waste Directive'), OJ L 102, 11.4.2006, p. 15;
Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007
establishing an Infrastructure for Spatial Information in the European Community (INSPIRE)
('the INSPIRE Directive'), OJ L 108, 25.4.2007, p. 1;
Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p.17.
Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on
ambient air quality and cleaner air for Europe ('the Air Quality Directive'), OJ L 152,
11.6.2008, p. 1;
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008
on waste and repealing certain Directives ('the Waste Framework Directive'), OJ L 312,
22.11.2008, p. 3;
Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009
on the conservation of wild birds ('the Wild Birds Directive'), OJ L 20, 26.1.2010, p. 7;
Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010
on industrial emissions (integrated pollution prevention and control) ('the Industrial
Emissions Directive'), OJ L 334, 17.12.2010, p. 17;
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011
on the assessment of the effects of certain public and private projects on the environment ('the
Environmental Impact Assessment Directive'), OJ L 26, 28.1.2012, p. 1; this replaces
Directive 85/337/EEC;
Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the
control of major-accident hazards involving dangerous substances, amending and
subsequently repealing Council Directive 96/82/EC ('the Seveso III' or 'Major-Accident
Hazards Directive'), OJ L 197, 24.7.2012, p. 1;
Commission Recommendation of 11 June 2013 on common principles for injunctive and
compensatory collective redress mechanisms in the Member States concerning violations of
65
rights granted under Union Law (2013/396/EU) ('the Commission Collective Redress
Recommendation'), OJL 201, 26.7.2013, p.60;
Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December
2016 on the reduction of the national emissions of certain atmospheric pollutants, amending
Directive 2003/35/EC and repealing Directive 2001/81/EC ('the National Emissions Ceiling'
or 'NEC Directive'), OJL 344, 17.12.2016, p.1.